Opinion
No. 92-TR-C-04336.
Decided August 19, 1992.
Mark Tolles, Assistant City Prosecutor, for the state.
James M. Sharp, for defendant.
The complainant, Deputy Sheriff Roger Cochran, has charged the defendant, Ty Lee Whitacre, with two counts of drunk driving on July 2, 1992, namely, driving while under the influence of alcohol (R.C. 4511.19[A][1]) and driving while with a prohibited alcohol concentration (R.C. 4511.19[A][3]).
On August 3, 1992, Whitacre filed a motion to suppress evidence. In that motion, Whitacre contended that Cochran had no Fourth Amendment justification either to stop the vehicle that he was operating, to detain him for a roadside investigation, or to arrest him for drunk driving. Specifically, Whitacre contended that there was no reasonable articulable suspicion for the stop and detention, and that there was no probable cause for the arrest. (The parties stipulated that Cochran had no warrant.)
On August 12, 1992, the court heard Whitacre's motion and took it under advisement.
Issues
Whitacre's motion raises these Fourth Amendment issues:
First: Did Cochran have authority to stop the vehicle that Whitacre was driving, based upon articulable facts and circumstances that led him to a reasonable suspicion that the occupants were engaged in illegal conduct?
Second: Did Cochran thereupon have authority to detain Whitacre to administer roadside field sobriety tests, based upon further articulable facts and circumstances that led him to a reasonable suspicion that the driver was drunk?
Third: Did Cochran thereupon and, finally, have authority to arrest the driver for drunk driving, based upon articulable facts and circumstances that led him to a probable-cause belief that the driver had been driving drunk?
Findings of Fact
Based upon a greater weight of the believable evidence, the court finds these facts (which are stated in chronological order):
Officer's background
1. Cochran is a deputy sheriff. (The testimony was silent as to Cochran's education, training, and experience — either in a general way as to his law enforcement activities or in a specific way as to his drunk-driving investigations — and was silent as to his number of years in law enforcement work.)
Day, date, time, and place
2. The incident in this case occurred on Thursday, July 2, 1992, at 10:56 p.m., in Henry Township, Wood County, Ohio, near the intersection of State Route 25 and Cygnet Road, which is in a rural area of the county.
Officer's duty, uniform, and cruiser
3. At that time, Cochran was on duty, doing routine traffic patrol, wearing the uniform of the day, and operating a cruiser that had sheriff department emblems on its doors and the light on its roof.
Initial sighting of defendant's vehicle
4. a. Cochran had been traveling westbound on Cygnet Road and was approaching the intersection of State Route 25. As he prepared to turn northbound onto State Route 25, he observed in the southbound lane of State Route 25 a mini-van automobile, which was headed southbound but was stationary at a stop sign for that intersection.
b. At the same time, Cochran observed in the southbound lane of State Route 25 — directly behind the mini-van at a couple of car lengths — a Buick automobile, which also was southbound and moving towards the mini-van. (Later, Cochran determined that the operator of the Buick was Whitacre.)
c. Cochran saw the Buick come to a braking-sliding stop shortly behind the still-stationary mini-van. (The court disbelieves Whitacre's testimony that the Buick did not stop in that manner.) The Buick, however, left no tire marks on the roadway.
Officer's stop of the vehicle
5. a. The Buick's horn started blowing and the Buick's occupants started shouting — through its opened windows and at the driver of the van. Cochran saw no reason for this conduct.
b. Thinking that the Buick had a "carload of drunks raising hell on the road," Cochran stopped his cruiser opposite the stationary Buick and ordered its driver to pull off the roadway. The driver drove the Buick around the corner and stopped it in the driveway of an abandoned gas station. Cochran pulled up with his cruiser.
Officer's initial contact with the vehicle's operator
6. a. Cochran exited his cruiser, walked to the driver's door of the Buick, and asked what the problem was. Through the opened window, the driver responded that he was having some problem with his passengers.
b. Cochran could smell the odor of an alcoholic beverage coming from inside the Buick. (However, at the hearing, Cochran did not characterize it as "strong," "moderate," "weak," or whatever; and, he never clarified whether he determined at any time that the driver, himself, had that odor on his breath or about his person.)
Operator of the stopped vehicle; passengers
7. a. The person seated in the driver's seat was Whitacre. (The parties stipulated that the defendant in the courtroom was the same person as the person who Cochran determined was the operator of the Buick.)
b. Whitacre, as the operator of the Buick, said that he did not have his billfold or his driver's license or the vehicle registration contained therein.
c. There also were two passengers seated in the front seat and two more seated in the back seat.
Operator's roadside admissions to the officer
8. Cochran asked Whitacre if he had been drinking; Whitacre responded "yes." (Court's query: Was it alcohol? or what? At the scene, Cochran did not ask, and Whitacre did not say.) However, the court infers from the evidence that Whitacre and Cochran both reasonably understood this to mean that Whitacre had been drinking some type of an alcoholic beverage. Officer's roadside sobriety field tests
9. Cochran had Whitacre exit the Buick, and then had him perform several divided attention skills ("DAS") tests. See Appendix, which contains a work sheet of the DAS tests. The court — by judicial notice from commonly known facts — accepts them as being standard roadside tests that aid an officer in the determination of whether a person is under the influence of alcohol or with a prohibited concentration of alcohol. The court will now discuss each of those tests.
a. Horizontal Gaze Nystagmus ("HGN") test. On the HGN test, Cochran saw that in each of Whitacre's eyes there was no smooth pursuit, there was distinct nystagmus at maximum deviation, and there was onset of nystagmus before forty-five degrees. Thus, there were six of six clues. This indicated to Cochran that Whitacre was probably under the influence of alcohol or with a prohibited concentration of alcohol.
b. Walk-and-turn ("WAT") test. On the WAT test, there is insufficient evidence for the court to find (1) whether Cochran did or did not properly instruct Whitacre on how to perform the test, and (b) whether Whitacre did or did not properly perform the test. Accordingly, the court disregards all of that testimony as having insufficient weight.
c. One-leg-stand ("OLS") test. On the OLS test, the court accepts Cochran's testimony to the effect that Whitacre passed the test. However, Cochran did not adequately explain the test to Whitacre and did not have Whitacre attempt to take it completely.
d. Portable breath tester ("PBT"). Cochran had Whitacre blow into a PBT, namely, the Alco-Sensor III. The court takes judicial notice — from the Ohio Department of Health regulations (Ohio Adm. Code 3701-53-02) — that the PBT is a non-evidential, preliminary breath-testing instrument for determination of the breath-alcohol concentration of a suspected drunk driver. The result of Whitacre's test was a reading that showed a concentration somewhat above ten-hundredths of one gram by weight of alcohol per two hundred ten liters of his breath. This indicated to Cochran that Whitacre was probably under the influence of alcohol or with a prohibited concentration of alcohol.
Officer's arrest of the operator
10. Cochran thereupon told Whitacre that he was under arrest for operating a vehicle while under the influence of alcohol, and then took him into custody.
Conclusions of Law
Based upon the above findings of fact, the court makes the following conclusions of law:
Fourth Amendment "seizure"
First conclusion: When Cochran signaled the driver of the Buick to pull over and the driver did so (by driving around the corner and stopping in the gas station driveway), there was a "seizure" of the vehicle and its occupants within the meaning of the Fourth Amendment as applied to the states by the Fourteenth Amendment. The United States Supreme Court has held that "[i]t must be recognized that whenever a police officer accosts an individual and restrains his freedom to walk away, he has `seized' that person." Terry v. Ohio (1968), 392 U.S. 1, 16, 88 S.Ct. 1868, 1877, 20 L.Ed.2d 889, 903, 44 O.O.2d 383, 391. See, also, Delaware v. Prouse (1979), 440 U.S. 648, 653, 99 S.Ct. 1391, 1395, 59 L.Ed.2d 660, 667.
The court has also held that "[t]he Fourth Amendment applies to seizures of persons, including brief investigatory stops such as the stop of the vehicle here." United States v. Cortez (1981), 449 U.S. 411, 417, 101 S.Ct. 690, 694-695, 66 L.Ed.2d 621, 628.
Reasonable and articulable suspicion to stop/detain
Second conclusion: Cochran's initial actions (his stop or "seizure" of the Buick and its occupants, and his brief roadside detention and investigation) constituted a valid Terry-type stop/detention, and did not violate the Fourth Amendment.
To justify warrantless seizures of persons and/or their vehicles for purposes of temporary detention and investigation, the United States Supreme Court has held:
"[A] police officer may in appropriate circumstances and in an appropriate manner approach a person for purposes of investigating possibly criminal behavior even though there is no probable cause to make an arrest." Terry v. Ohio, supra, 392 U.S. at 22, 88 S.Ct. at 1880, 20 L.Ed.2d at 906-907.
"In assessing whether a detention is too long in duration to be justified as an investigative stop, we consider it appropriate to examine whether the police diligently pursued a means of investigation that was likely to confirm or dispel their suspicions quickly, during which time it was necessary to detain the defendant." United States v. Sharpe (1985), 470 U.S. 675, 686, 105 S.Ct. 1568, 1575, 84 L.Ed.2d 605, 615-616.
There must be "at least articulable and reasonable suspicion that a motorist is unlicensed or that an automobile is not registered, or that either the vehicle or an occupant is otherwise subject to seizure for violation of [the] law * * *." Delaware v. Prouse, supra, 440 U.S. at 663, 99 S.Ct. at 1401, 59 L.Ed.2d at 673.
An officer has "the authority * * * to make a forcible stop of a person when the officer has [a] reasonable, articulable suspicion that the person has been, is, or is about to be engaged in criminal activity." (Emphasis sic.) United States v. Place (1983), 462 U.S. 696, 702, 103 S.Ct. 2637, 2642, 77 L.Ed.2d 110, 117-118. See, also, United States v. Cortez, supra, 449 U.S. at 417, 101 S.Ct. at 694, 66 L.Ed.2d at 628; Florida v. Royer (1983), 460 U.S. 491, 498, 103 S.Ct. 1319, 1324, 75 L.Ed.2d 229, 236.
The "level of suspicion is considerably less than proof of wrongdoing by a preponderance of the evidence. * * * [P]robable cause means `a fair probability that contraband or evidence of a crime will be found,' * * * and the level of suspicion required for a Terry stop is obviously less demanding than that for probable cause * * *." United States v. Sokolow (1989), 490 U.S. 1, 7, 109 S.Ct. 1581, 1585, 104 L.Ed.2d 1, 10.
However, such stops can not be based solely upon unparticularized suspicion or inarticulate hunches. See United States v. Stanley (C.A.1, 1990), 915 F.2d 54, 56.
Several Ohio Supreme court decisions on the subject of Terry-stops/detentions are State v. Freeman (1980), 64 Ohio St.2d 291, 18 O.O.3d 472, 414 N.E.2d 1044; State v. Bobo (1988), 37 Ohio St.3d 177, 524 N.E.2d 489; State v. Andrews (1991), 57 Ohio St.3d 86, 565 N.E.2d 1271. Compare State v. Smith (1989), 45 Ohio St.3d 255, 544 N.E.2d 239, reversed in Smith v. Ohio (1990), 494 U.S. 541, 110 S.Ct. 1288, 108 L.Ed.2d 464.
Did Cochran stop/detain the Buick and its driver at random, or upon some mere whim or caprice, or upon either some unparticularized suspicion or some inarticulate hunch, or for purely harassment purposes, or on some pretext, or for some innocuous conduct? No. Rather, did he have a reasonable suspicion, based upon articulable facts, that a crime either was being committed or was about to be committed? Yes.
Cochran suspected that the Buick contained some drunks, including its driver. This suspicion was based upon these specific, articulated facts: (1) the time was in the late night hours; the location was in a rural area; (2) the Buick car came to a brake-sliding, abnormal stop behind the stationary minivan; and (3) the Buick's occupants behaved abnormally, by blowing the car's horn and by shouting at the van's driver. In Cochran's opinion, this was characteristic of very typical drunken behavior.
But our question is: What could a law enforcement officer reasonably conclude from this activity? Whether that activity was an assured-clear-distance violation or a following-too-close violation, the officer could not know. Whether that activity was a disorderly conduct violation, the officer could not know. Whether it was a drunk-driving violation, the officer could not know.
But whether that activity was or might be any of the above-mentioned criminal conduct (either already completed or still in progress), the officer could certainly and reasonably suspect that it was. To confirm or dispel that suspicion, he would need more information. And, he would have a law enforcement officer's duty to seek that information by intervening — either to apprehend the perpetrators of any criminal activity that had occurred (crime detection) or to prevent such activity that was about to occur (crime prevention).
Cochran did intervene, by causing the Buick to be stopped and by briefly questioning its driver (Whitacre). Cochran's initial suspicions were further aroused by these specific, articulated facts as he talked to the driver who was still seated in the car: (1) Whitacre said that he was having trouble with his passengers; (2) Cochran immediately smelled the odor of an alcoholic beverage coming from the passenger compartment; and (3) Whitacre said that he had drunk some alcohol earlier.
Would a law enforcement officer's suspicions be highly aroused after such brief questioning of the driver and perceptions of the situations? Yes. Would those suspicions cause an officer to reasonably believe that the driver was driving drunk? Yes. Would those aroused suspicions cause that officer to investigate further? Yes.
And, that is what Cochran did. He had Whitacre exit the car and perform a few roadside field-sobriety tests, which only took a few minutes. (Cochran audio-taped the incident, and played the tape at the hearing. The elapsed time of that tape — from Cochran's reaching the parked Buick to his arresting its driver — was four minutes and eight seconds.)
Accordingly, the court concludes that Cochran's initial actions (his warrantless seizure of the Buick and its occupants, and his brief roadside detention of the driver to investigate the incident) constituted a valid Terry-type stop and detention. His actions did not violate the Fourth Amendment.
Probable cause to arrest
Third conclusion: Cochran's follow-up actions (his arrest of Whitacre and taking him into custody) constituted a valid warrantless arrest based upon probable cause to believe that Whitacre was operating a vehicle while intoxicated. Cochran's actions did not violate the Fourth Amendment.
To justify such a warrantless arrest, the United States Supreme Court has held:
The "general rule [is] that every arrest, and every seizure having the essential attributes of a formal arrest, is unreasonable unless it is supported by probable cause." Michigan v. Summers (1981), 452 U.S. 692, 700, 101 S.Ct. 2587, 2593, 69 L.Ed.2d 340, 348.
"* * * `[P]robable cause' to justify an arrest means facts and circumstances within the officer's knowledge that are sufficient to warrant a prudent person, or one of reasonable caution, in believing, in the circumstances shown, that the suspect has committed, is committing, or is about to commit an offense." Michigan v. DeFillippo (1979), 443 U.S. 31, 37, 99 S.Ct. 2627, 2632, 61 L.Ed.2d 343, 349-350. See, also, Brinegar v. United States (1949), 338 U.S. 160, 175, 69 S.Ct. 1302, 1310, 93 L.Ed. 1879, 1890; Beck v. Ohio (1964), 379 U.S. 89, 85 S.Ct. 223, 13 L.Ed.2d 142, 31 O.O.2d 80.
"`The substance of all the definitions' of probable cause `is a reasonable ground for belief of guilt.' * * * And this `means less than evidence which would justify condemnation' or conviction * * *." Brinegar, supra, 338 U.S. at 175, 69 S.Ct. at 1310, 93 L.Ed. at 1890. It also means "more than bare suspicion." Id.
Thus, probable cause is more than reasonable articulable suspicion, but is less than proof beyond a reasonable doubt.
Several Ohio Supreme Court decisions on the subject of probable cause to arrest are: State v. Timson (1974), 38 Ohio St.2d 122, 67 O.O.2d 140, 311 N.E.2d 16, and State v. George (1989), 45 Ohio St.3d 325, 544 N.E.2d 640. See, also, Dixon v. Maxwell (1964), 177 Ohio St. 20, 28 O.O.2d 418, 201 N.E.2d 592, but compare the United States Supreme Court decision of Berger v. New York (1967), 388 U.S. 41, 87 S.Ct. 1873, 18 L.Ed.2d 1040.
Did Cochran have probable cause to arrest Whitacre for drunk driving? Yes. What were the facts and circumstances to support that probable cause and to justify that arrest?
First of all, Cochran had the three above-mentioned " Terry-stop" factors that justified his warrantless roadway seizure, i.e., the stop of the vehicle: (1) the time was late at night and the area was rural; (2) the manner in which the Buick stopped behind the mini-van (sliding to a stop) was abnormal; and (3) the behavior of the Buick's occupants (honking the car horn and shouting out the car windows at another vehicle) was abnormal.
Second of all, Cochran had the three above-mentioned " Terry-detention" factors that justified his roadside investigation: (1) in response to Cochran's first question, Whitacre said that he was having trouble with his passengers; (2) while Cochran stood at the opened window of the driver's side of the Buick, he saw Whitacre seated in the driver's seat and smelled the odor of an alcoholic beverage coming from the passenger compartment; and (3) in response to Cochran's second question, Whitacre said that he had been drinking alcohol.
Third of all, Cochran had these two additional factors obtained from the field sobriety tests conducted during his roadside investigation: (1) when Cochran administered the HGN test, Whitacre failed it completely; and (2) when Cochran took a sample of Whitacre's breath on the PBT, the results showed a prohibited concentration of alcohol in his breath.
Thus, there were three sets of articulated facts and circumstances — a total of eight specific factors — that Cochran relied upon in arresting Whitacre. Would those eight factors in their totality constitute the requisite probable cause for a law enforcement officer to believe that Whitacre was operating a vehicle while under the influence of alcohol or while with a prohibited alcohol concentration? Yes.
Accordingly, Cochran's follow-up actions (arresting Whitacre and taking him into custody) constituted a valid warrantless arrest based upon probable cause to believe that Whitacre was operating a vehicle while intoxicated. Thus, Cochran's actions did not violate the Fourth Amendment.
Conclusion
Based upon the above findings of fact and conclusions of law, the court concludes that the defendant's motion is not well taken. The court will overrule it in a judgment entry to be filed with this decision.
Reporter's Note: The defendant, thereafter, pled no contest and was found guilty. There was no appeal.
APPENDIX Field sobriety tests
"DWI Enforcement: Improved Standardized Sobriety Testing." The Traffic Institute, Northwestern University, P.O. Box 1409, Evanston, Illinois 60204. (Stock No. 6113; undated.)
Horizontal Gaze Nystagmus ("HGN") test Right eye:
1. Nystagmus in the right eye is moderate or distinct when the eye is moved as far as possible to the right. (1 point)
2. The right eye cannot follow a moving object smoothly. (1 point)
3. Onset of horizontal gaze nystagmus in the right eye occurs before 45 degrees. (1 point)
Left eye:
1. Nystagmus in the left eye is moderate or distinct when the eye is moved as far as possible to the left. (1 point)
2. The left eye cannot follow a moving object smoothly. (1 point)
3. Onset of horizontal gaze nystagmus in the left eye occurs before 45 degrees. (1 point)
Scoring: If the suspect scores four or more points out of the possible six on the test, classify the BAC as 0.10 per cent of above.
Walk-and-turn ("WAT") test
1. Cannot keep balance while listening to the instructions. (1 point)
2. Starts before the instructions are finished. (1 point)
3. While walking, stops to steady self. (1 point)
4. Does not touch heel-to-toe. (1 point)
5. Steps off the line. (1 point)
6. Uses arms to balance. (1 point)
7. Loses balance while turning or turns incorrectly. (1 point)
8. Incorrect number of steps. (1 point; not 9)
9. Cannot do test. (9 points)
Scoring: If the suspect scores two or more points on this test, classify the BAC as 0.10 per cent or above.
One-leg-stand ("OLS") test
1. Suspect sways while balancing. (1 point)
2. Uses arms for balance. (1 point)
3. Hops. (1 point)
4. Puts foot down. (1 point)
5. Cannot perform test. (5 points)
Scoring: If the suspect scores two or more points on this test, there is a good chance that the BAC is 0.10 per cent or higher.