Police Cannot Search Texts, Call Logs, Photos, Videos on Cell Phone Without a Warrant

July 27, 2014  |   Posted by :   |   Columbus Criminal Defense   |   Comments Off

The U.S. Supreme Court recently considered whether the police can search someone’s cell phone data after they have been arrested.  Can they look through your texts and call log?  Can they scan through your pictures and videos to find evidence of a crime?  

Their conclusion was no.  The police generally may not, without a warrant, search digital information on a cell phone seized from an individual who has been arrested.  If you are arrested and the police want to search your cell, they must get a warrant.

The case before the court actually involved two related cases.  In both cases, the police arrested someone, searched their phone, and then used the information in photos or call logs to charge them with a more serious crime. 

The Police Look Through Arrestee’s Cell Phone Texts, Contacts, Pictures & Videos

In the first case, the defendant was stopped for driving with expired tags.  After running his license, the officer also found that the driver’s license had been suspended.

The officer impounded the car.  During an inventory search of the car, officers found two handguns under the car’s hood and charged the defendant with an illegal weapons charge.  While conducting a search incident to the arrest, the officer found and seized a cell phone (a smart phone) from the defendant’s pants pocket.

The officer looked through the phone’s texts and contacts and noticed repeated use of a term associated with a street gang.   Back at the station, another officer looked through photos and videos on the phone.  They found videos of what appeared to be gang activity.  

Additionally, there was a photo of the defendant standing in front of a car the police suspected had been used in a shooting a few weeks earlier.  Based on those photos, the police charged him in connection with a shooting that had occurred a few weeks earlier and asked for an enhanced sentence based on his gang membership.

Police Use Cell Phone Picture and Contacts to Find and Search Arrestee’s House

In another case, the police observed the defendant making an apparent drug sale from a car.  They arrested him and seized a flip phone from his pocked. 

Officers noticed that the phone kept ringing from a number labeled “My House” on the phone.  They opened the phone and saw a photo of a woman and a baby set as the phone’s wallpaper.  They looked through the contacts and found the number associated with “My House.”  They used on a online phone directory to trace that phone number to an apartment building.

When the officers went to the apartment, they saw defendant’s name on a mailbox and saw a woman resembling the woman in the phone’s wallpaper picture through a window.  They got a search warrant and found drugs, including marijuana and drug paraphernalia, a firearm and ammunition, and cash.  He was charged with drug possession with intent to distribute, and illegal possession of a firearm.

Can Police Search Your Cell Phone If You Are Arrested?

If you are arrested, the police are permitted to perform a search “incident to arrest.”  This means they can search you on the scene to “remove any weapons” that could be used to resist arrest or escape and to seize evidence that might be later concealed or destroyed if not confiscated.  Police can search both your person and your car incident to arrest (if you were pulled over prior to the arrest). 

The purpose of this search is to ensure the officer’s safety and to prevent the concealment or destruction of evidence.  

The problem with searching texts, photos, videos, etc on a cell phone is that neither of these purposes are achieved.  The digital data on a phone can’t be used as a weapon or to help someone escape.  Nor is it risk of destruction or deletion of data if the phone is secured by police.  

Meanwhile, cell phones have an enormous amount of personal information that should be protected from an unreasonable search.  Your entire life – emails, texts, phone logs, photos, videos, calendar – can be reconstructed by a search through your iPhone or Droid. 

Therefore, the Court found that police must generally get a warrant before looking through an arrestee’s cell phone data (including texts, photos, videos, contacts, etc).  

Police are free to examine the phone itself to make sure there is nothing dangerous about it (i.e. a razorblade hidden in the phone case), but the digital data is off limits.   The proper course for police is to secure the phone and obtain a warrant before searching the phone data. 

What About the Possibility of Remote Wiping of Data?

One concern raised by the prosecution was remote data wiping.  When someone is arrested, they could have a friend wipe their data clean remotely to prevent the police from searching later.  But the Court did not buy this argument.  Even if this were a real threat (which the Court was not convinced happened often), the data wipe could happen when the arrest was anticipated or before the officer’s got their hands on the phone.

And if this were a real concern, the police could always turn the phone off, take out the battery to prevent remote data deletion, or put it in a “Faraday bag” to take it offline.   

If you have been arrested and are concerned that your phone may have been illegally searched by police, speak with an attorney about your case.  If the police searched your phone without a warrant and used that information to charge you, there may be a Fourth Amendment defense available to the charge. 

Riley v. California, 573 U.S. ___ (2014)

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Riddell Law Attorneys Named as Ohio Rising Stars by SuperLawyers® Magazine for 2015

July 25, 2014  |   Posted by :   |   Awards & Recognitions   |   Comments Off

We received the good news yesterday that Attorneys Douglas Riddell and Bridget Purdue Riddell have been named yet again as Rising Stars by Ohio SuperLawyers Magazine for 2015. 

The selection process for the Rising Stars list involves three steps: creation of the candidate pool; evaluation of candidates by the SuperLawyers research department; and peer evaluation by practice area.

To be eligible for inclusion in Rising Stars, an attorney must be either 40 years old or younger or in practice for 10 years or less.   While up to five percent of the lawyers in Ohio are named to Super Lawyers, no more than 2.5 percent are named to the Ohio Rising Stars list.

The full list will be published in Columbus Monthly in December of 2014 as well as in the Ohio SuperLawyers Magazine in January of 2015.  

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Overweight Truck Citation Dismissed for Lack of Testimony Establishing Truck’s Weight

July 25, 2014  |   Posted by :   |   Ohio Traffic Defense   |   Comments Off

One recent Ohio commercial trucking case demonstrates the importance of details in defending against a criminal or traffic charge.

Here, the trucker was charged with a local ordinance prohibiting an overweight vehicle on a local road.  However, at trial, the only testimony regarding the weight of the truck came from the officer’s estimate of how much he thought the truck probably weighed.  Because the prosecutor did not follow the proper channels introducing this evidence and establishing the truck’s weight through testimony, the charge was ultimately dismissed.

Officer Cannot Testify Regarding Estimates of Commercial Truck’s Weight Unless Legal Foundation is Laid for Officer’s Experience & Training with Commercial Vehicle Weight 

An Ohio officer pulled over a commercial truck after observing the truck turn off of a State Route.  The driver was unfamiliar with the area and was following the route suggested by his GPS.  The truck turned because, unbeknownst to the driver, the state route was closed.

The driver turned into a driveway to turn the truck around.  Just beyond the driveway was a “no trucks” sign.  The truck was cited for operating an overweight truck on a local street in violation of a local ordinance, which stated:

“…no person shall operate any truck, commercial tractor (with or without a semitrailer attached) or other motor vehicle, being a gross weight of 10,000 pounds or more upon any street or highway within the City, other than U.S. routes or state routes or the intersections thereof, unless the weight limit for any particular street or highway is otherwise modified by the City.  When a semitrailer is attached to another and separate motor vehicle,
then the gross weight shall include the motor vehicle, semitrailer and load for determining gross weight.”

Thus, the driver argued at trial that the prosecutor was required to prove, beyond a reasonable doubt, that his truck exceeded a gross weight of 10,000 lbs.

In prior cases, courts have held that testimony by an officer that the defendant was a “semi” or a “Fed Ex Truck” was insufficient to establish the truck’s weight.  The question for the judge here, then, was whether a veteran officer can testify, through his training and experience, that a particular truck is in far excess of 10,000 pounds.

Here, the officer testified that, based on his training and experience, the minimum that a similar truck would weigh is in the high 20,000 pounds to low 30,000 pounds without a load.  The court found this “in my experience” testimony to be insufficient to prove the actual truck’s weight.   The court refused to accept the officer’s unfounded statement about the truck’s weight.

The prosecutor could have had the officer testify that he checked the registration or load weights, but the prosecutor failed to present this testimony.   Furthermore, the prosecutor might have tried to establish that the officer had the proper specialized knowledge to estimate a truck’s weight.  But again, the state failed to present this testimony.

Thus, the overweight truck conviction was overturned and dismissed.

If you have been charged with an overweight truck violation in the Columbus area, contact our CDL attorney today regarding advice on what to do next in your case.

Napoleon v. Green, 2014-Ohio-3192.

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OVI Dismissed Based on Mistake of Law by Officer: Failure to Stop “At” Stop Sign Includes Stopping “On” the Stop Line

July 17, 2014  |   Posted by :   |   Ohio DUI / OVI Defense   |   Comments Off

In every OVI case, it is critical to examine the reason for the initial stop.  The police are required to have “reasonable, articulable suspicion” that you have committed a traffic stop or committed some other crime in order to pull you over.  If they think you committed a traffic violation – but were wrong on the law – the stop could be thrown out.

In this case, the driver was pulled over for a stop sign violation.  The statute at issue said he had to stop “at” the stop line.  He stopped on top of the stop line (his front wheels were over it and back wheels behind it).  He was not required to stop “before” the line.  Thus, the officer lacked reasonable suspicion to pull him over and OVI charge was dismissed.

Stopping “On” the Stop Line at a Stop Sign Did Not Merit a Traffic Stop by Police

Here, around 2:00 AM, an officer pulled the defendant over for failure to stop his car before the “clearly marked solid stop bar.”   Upon approaching the car, the officer said he detected a “strong odor” of alcohol, observed “red, bloodshot, watery, and glossy” eyes and that the defendant was slurring his speech.  The defendant submitted to field sobriety tests and was cited for OVI and for operation of a vehicle at a stop sign. 

In court, the defendant filed a motion to suppress arguing that the officer lacked any reasonable suspicion to pull him over.  The “operation of a vehicle at a stop sign” law at issue states:

 “[e]xcept when directed to proceed by a law enforcement officer, every driver of a vehicle  approaching a stop sign shall stop at a clearly marked stop line, but if none before entering the crosswalk on the near side of the intersection, or, if none, then at the point nearest the intersecting roadway where the driver has a view of the approaching traffic on the intersecting roadway before entering it.”

At the hearing, the defendant argued that he did in fact stop “at” the stop line — his car was on top of the stop line.   His car didn’t go into the street or create a hazard for oncoming traffic.  The court agreed.

The officer pulled him over for failure to stop “before” the stop line, which is not illegal under the statute. Because the driver stopped “at” the stop line (even if he was on top of it and is front wheels were in front of the line), he did not violate the stop sign law in this case.  Nothing in the law said which part of the car had to stop at the stop line.  In fact, “at” in the dictionary means “in, on or near” – which is exactly what he did here.  He was on the stop line when he was pulled over.  (State v. Drushall, 2014-Ohio-3088).

If you have been charged with an OVI and have any questions about the legality of the initial traffic stop, talk to our OVI attorneys at (614) 361-2804. 

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OVI Dismissed for Failure to Establish Marked Lanes Violation

July 13, 2014  |   Posted by :   |   Ohio DUI / OVI Defense   |   Comments Off

One of the most common traffic stops we see in OVI cases is marked lanes.   Marked lanes generally means weaving or otherwise moving over the center yellow line.  In this case, the officer pulled the driver over for “straddling the yellow line” while changing lanes and subsequently arrested him for OVI.  

The court agreed that this was not a marked lanes violation.  Thus, all evidence of the stop was thrown out and the OVI dismissed.

Driver Stopped by Officer for a Marked Lanes Violation When He Straddles the Center Dotted Line While Moving to the Right-Hand Lane

Around 3:00 a.m., an Ohio Highway Patrol officer witnessed a driver, who was in the left lane, turn on his right turn signal and then straddle the center dotted line for 50-100 feet before moving over into the right lane.  The driver  left his right turn signal on for about 300 yards, then made a right turn onto a closed exit ramp.

About halfway down the exit ramp, the officer stopped the driver for marked lanes.  Upon approaching the car, the officer noticed a strong odor of alcohol, that the driver’s eyes were glassy and that the driver was slurring his speech.  

When asked how much he had drink, the driver admitted to drinking one shot of liquor.   After performing field sobriety tests, the driver was arrested for OVI, in violation of R.C. 4511.19(A)(1).

Straddling the Center Line While Changing Lanes is Not a Marked Lanes Violation

Generally, the police can stop a vehicle when the officer has probable cause to believe that a traffic violation, even a minor one such as marked lanes, has occurred or is occurring.  But if no traffic violation has occurred and there is no evidence of any criminal activity, the stop may be unconstitutional under the Fourth Amendment.

Ohio’s marked lanes law says:

“(A) Whenever any roadway has been divided into two or more clearly  marked lanes for traffic, or wherever within the municipality traffic is lawfully moving in two or more substantially continuous lines in the same direction, the  following rules apply:

(1) A vehicle shall be driven, as nearly as is practicable, entirely within a single lane or line of traffic and shall not be moved from the lane or line until the driver has first ascertained that the movement can be made with safety.”

Here, the officer pulled the car over because he “straddled the center dotted line” for several feet (several seconds) before changing lanes.   This “uncommon” driving behavior caught the officer’s attention and spurred the traffic stop. 

In sum, the driver turned on his right-turn signal, changed lanes and during this lane change straddled the center line for a few seconds.  

The court concluded that straddling the center line for a few seconds does not constitute a marked lanes violation.   

Marked lanes usually involves weaving or moving over the center yellow line and then back into the original lane.  Here, he just straddled the center lane while changing lanes with his turn signal on.   In fact, a more gradual lane change may even be safer, giving the driver the opportunity to move in the event a car was in his blind spot.  

Likewise, entering a closed exit isn’t a traffic violations.  There could be many reasons for pulling off the highway, i.e. checking directions.  

Because no marked lanes violation occurred here, the entire stop was thrown out and the OVI charge dismissed.  

If you have been charged with marked lanes and OVI, talk to an Ohio attorney about your options.  Our Columbus DUI attorneys regularly handle OVI cases involving marked lanes and there may, as here, be a defense to the initial stop that could lead to the case being thrown out.  

State v. Maxwell, 2014-Ohio-3062

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Right of Way Charge Dismissed for Failure to Prove All Elements Beyond a Reasonable Doubt

July 12, 2014  |   Posted by :   |   Columbus Traffic Law   |   Comments Off

When a criminal or traffic case goes to trial, the prosecutor is required to prove ALL elements of the charged offense beyond a reasonable doubt.  That is a fairly high burden and often cannot be met.  

Here, for example, the defendant was charged with violating a right-of-way at intersections law.  But the officer charged him with the wrong section of the law – and the section cited on the ticket could not be proven.  By the time they realized it, it was too late to fix it.  Thus, the defendant was found not guilty of the right-of-way charge. 

Driver Allegedly Pulled Out in Front of Another Driver

In this case, the defendant was traveling southbound toward an intersection.  Once he reached the intersection, he stopped at the stop sign and then turned into the curb lane of the road. He then merged into the middle lane and was going about 20 m.p.h.   He then heard a vehicle behind him screech, saw it make a sharp turn to the right and then come to a stop by knocking over a fire hydrant.

Concerned for the safety of the other driver, he pulled into a nearby driveway, checked on the other driver and called the police.  The other driver said he was going about 35 mph when the defendant suddenly pulled out in front of him.  He swerved to avoid him and hit the hydrant.   At the scene, the defendant took full responsibility for causing the accident.  Thus, he was cited with violating the local municipality’s “right of way at intersections” law. 

Because the Wrong Ordinance Was Charged, the Court Had No Choice but to Overturn the Conviction

The municipality’s right of way at intersections law said:

“When two vehicles approach or enter an intersection from different streets  or highways at approximately the same time, the driver of the vehicle on the left shall yield the right-of-way to the vehicle on the right.”

At trial, the judge acknowledged that what happened in this case was not a right of way violation.  If anything, the court said, it should be another section of the right of way code (but that was not charged here).  The trial court nonetheless found him guilty because by entering traffic going 20 mph when other traffic was moving at 35 mph, he created a “hazardous situation.”

On appeal, however, the court agreed with the defendant, finding that the prosecutor did not prove each element of the charged offense beyond a reasonable doubt.  The trial testimony did not support that the defendant was “on the left” and was required to yield to a car “on the right.”  Thus, the conviction was overturned and the charge dismissed.  

If you have been cited with a traffic violation and would like advice on next steps, talk to one of our Columbus traffic attorneys at (614) 361-2804. 

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OVI Charge Dropped for Unconstitutional Stop Where Police Shined Flashlight in Suspect’s Eyes

July 06, 2014  |   Posted by :   |   Columbus, Ohio DUI Law   |   Comments Off

There can be a fine line between what the law calls a “consensual” police encounter and an “investigative” stop by police.  For an investigative stop (where you do not feel like you can walk away from an officer), the police must be able to point to specific things you did that made them suspect criminal activity.  For example, weaving outside your lane, etc. 

In this case, the police overstepped the line.  By yelling at a citizen to stop and shining a light in his eyes, and then citing him for OVI, the officer violated the citizen’s Fourth Amendment rights.  As a result, the OVI charge was dropped. 

What is a “Seizure” Under the Fourth Amendment?

When an officer, “by means of physical force or show of authority, has in some  way restrained the liberty of a citizen” a “seizure” has occurred and and Fourth Amendment protections kick in.  In order for the police to seize someone (stop them from leaving), the police must have reasonable, articulable suspicion of criminal activity. 

As we have discussed before, there are several types of interactions between police and a citizen:.  The two types at issue here are:

(1) Consensual encounter – Where a police officer approaches a someone in a public place, engages the person in conversation or requests information, and the person remains free not to answer and walk away

(2) An investigative stop – Where a police officer prevents someone from walking away.  Even if the person didn’t try to actually leave and was stopped, this kind of stop could include:

  •  the threatening presence of several officers,
  • the display of a weapon by an officer, 
  • the police physically touching the citizen,
  • Use of language or tone of voice indicating that the officer’s request must be answered

The Police Shining a Light in Someone’s Face is a Seizure – Not a Consensual Encounter

Here, the officer was responding to complaints about a loud house party.  Officers broke up the party and spoke to several people outside about underage drinking.  After other officers left, one officer stayed behind and parked nearby the house.

About 2:00 am, the officer saw someone walk out the house party, get into a car and start drive a few houses down to another driveway.  When the driver got out of the car, the officer called out and asked if he had just left the house party down the street.  The driver testified that the officer said “hey stop”, shined his flashlight in the driver’s eyes, and told him to come over to the police car.  

The driver testified that he thought this was an order of the officer and that he was required to go over to him. 

At this point, the officer said he noticed that the driver’s eyes were watery and glassy, which indicated alcohol consumption.  He was subsequently arrested for OVI.   

The motion to suppress in court argued that because there was no reason for the police to initiate the stop (there was no specific reasonable suspicion of criminal activity), the stop was unconstitutional.  The court agreed.  

By ordering the driver to stop, shining a flashlight in his eyes, and commanding him to come to the police cruiser, this was not a consensual citizen-police encounter.  Further, the accusatory questions asked by the officer (Did you just come from the house party? Did you know the police were just there?) also indicates that the driver wouldn’t have felt free to walk away. 

Because there was no traffic violation, weaving, or other action by the driver indicating that he was involved in criminal activity, the police officer violated the driver’s Fourth Amendment rights.   By stopping him without a reason, shining a light in his face, and inspecting his eyes for signs of alcohol, the officer’s actions were unconstitutional.

Thus, all evidence of the OVI charge were excluded and the OVI charge dropped. 

If you have been charged with an OVI in the Columbus area, talk to a Columbus OVI attorney about your options at (614) 361-2804. 

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Underage Drinking Charges Dismissed Due to Warrantless Entry

July 01, 2014  |   Posted by :   |   Columbus Criminal Defense   |   Comments Off

A recent Ohio case tackled the issue of college parties and when the police can enter and search a home following a noise complaint.  In this case, although partygoers were dispersing, an officer entered the closed front door of a private home and issued a guest inside an underage drinking citation.  

The court concluded that without a warrant and without any applicable warrant exception, the search was unconstitutional.  Thus, the underage drinking citation was dismissed. 

The Police Enter Closed Front Door of Party Without a Warrant

The defendant was an invited, overnight guest at his friend’s home.  Around midnight, the police were dispatched to a loud party complaint.  Upon arrival, the officer observed around 30 to 40 people in the front yard and people going in and out of the house.

The officer said he found a resident of the home, and that person began telling guests they needed to leave.  Because the police were there, people were leaving.  After about 20 minutes, most of the party-goers were gone and the nuisance was abated.

Liquor control offers arrived on the scene.  The officer said that he saw a large gathering of people on the sidewalk and in the front yard and porch.  He observed two “youthful” looking individuals with red  Solo cups, which he said is often used to drink alcohol. The two individuals started walking “briskly” away and the officer followed them around back.  He lost sight of them and “assumed”  that they went in the back door of the house.

At this point, there were about 60-70 people in the backyard and 30-40 people in the front, but they were dispersing in all directions.   As the officer was walking around front, he saw to more “young” partygoers with red Solo cups.   The officer asked for ID, saw that they were under 21 and issued citations.

The officer then went up to the front porch and found a resident.  He told the resident that his requests to get people to leave were not making an impact and that people were just going inside the house.  The officer went into the home to announce that the party was over and to get people to leave.  He did not have permission to enter the closed front door.  He stated he also wanted to look for the two young partygoers he thought went through the back door.

The officer went inside and saw the young person from earlier in the kitchen with a red Solo cup in hand.   The officer spoke to him and found out he was drinking under 21 and issued a citation.  Another partygoer testified that when the officer entered the kitchen, people had already started to leave and only about 10-15 people were left in the house.

Warrantless Entry & Search Unconstitutional

There are a few narrow exceptions to the warrant requirement, including exigent circumstances (i.e. the police are chasing a bank robber and chase him into a home).   But exigent circumstances exception does not apply to minor misdemeanors (such as a noise ordinance).   Further, the exigent circumstances exception to warrantless home entries does not apply to any misdemeanor (including underage drinking).

Here, the front door was closed and the court found that the noise was already abated and partygoers were dispersing when the officer entered the home.  Thus, the warrantless entry and search of the residence was a violation of the Fourth Amendment.  As a result, the underage drinking charges were dismissed.

If you have been charged with underage drinking or other charge following a search of a private home in Columbus, talk to a Columbus underage drinking attorney about possible defenses.  Without a warrant, there are narrow circumstances under which the police can enter a private home — even during a party.  Our attorneys can be reached at (614) 361-2804.

 

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OVI Charges Dismissed Based on Video Evidence

June 27, 2014  |   Posted by :   |   Columbus, Ohio DUI Law   |   Comments Off

In a recent Ohio OVI case, the police cruiser video played a critical role in getting all OVI charges dismissed.  

The majority of Central Ohio police departments employ cruiser video cameras that can capture the traffic violation, interactions with the officer and any field sobriety tests during the traffic stop.  We obtain cruiser videos regularly for our clients as part of the discovery process.  If the cruiser video contradicts the police officer’s testimony on a crucial issue, this can be an invaluable piece of evidence for defending against OVI charges. 

What Happened During the OVI Stop

In this case (State v. Pate, 2014-Ohio-2029), the officer pulled over the driver around 2:00 am.  He said he pulled her over because her headlights were not on.  The officer said he smelled alcohol when he approached the car.  When asked, the driver admitted to having two beers.  

The officer then asked the driver to close her eyes and recite the alphabet.  She did “okay” with this test (which is not a sanctioned NHSTA test).  Regardless, he asked her to step out of the car and submit to field sobriety tests. However, the officer admitted on cross-examination that the driver got out of the car without falling or stumbling and that her speech was not slurred or mumbled.

Walk & Turn

The officer testified that the driver did not perform the walk-and-turn test correctly. Rather, she “stepped off the [imaginary] line four times [while being instructed],” “turned incorrectly and stumbled a little bit when she turned,” and “did not touch heel to toe.”

However, on cross-examination, the officer admitted that he didn’t know that the National Highway Traffic Safety Administration (NHTSA) allows a 1/2 inch space between heel and toe during the walk and turn test.  And the officer didn’t know how much space was between the driver’s heel and toe here during her walk and turn. 

One Leg Stand Test

On the one-leg-stand test, she put her leg down and stopped counting when she got to “three.”  But when asked to continue, she lifted her foot and kept counting to 14.   The officer noted that she “was also swaying while she was performing the test while trying to balance.” But the officer couldn’t say on cross-examination how much she was swaying.

Alphabet Test

Finally, the officer asked her to again recite the alphabet outside of her car.  She swayed slightly while reciting the alphabet, but kept her balance and did recite the alphabet correctly.  

He arrested her for OVI. 

The Motion to Suppress

At the motion hearing, the key piece of evidence was the video of the stop.  Although the officer said he pulled her over for having no headlights, the video showed that the driver did in fact have her headlights on when she was pulled over.   As a result, the stop was deemed unreasonable and all evidence taken by the officer (the field sobriety / breath tests) were thrown out.   All OVI charges were dismissed.

If you are facing an OVI charge and would like to investigate your possible defenses, contact our office at (614) 361-2804.  The video evidence is often key to our client’s defense.  If the initial stop was not supported by reasonable suspicion (a valid traffic stop) or if the field sobriety tests were not administered correctly, there may be grounds to challenge the OVI in court. 

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Marijuana Possession & Paraphernalia Charge Thrown Out for Lack of Reasonable Suspicion

June 22, 2014  |   Posted by :   |   Columbus Criminal Defense   |   Comments Off

In State v. Casey, 2014-Ohio-2586, the court threw out a possession of marijuana and paraphernalia charge based on the officer’s violation of the driver’s Fourth Amendment rights.  

Even though the driver passed field sobriety tests, the officer made the driver sit in his cruiser and wait for a canine unit to search his car for “marijuana or guns” (the officer wasn’t sure which).  The only basis for the detention was that the driver was “acting nervous.”  

Acting nervous by itself is not enough to support a detention by police.  So, all drug-related charges were dismissed.  Here is what happened:

The Search: A Rear Bumper Stop Turns Into a Marijuana Charge

In this case, the officer observed a car without a rear bumper and with a dangling rear license plate.   The officer pulled the car over.  When he approached, the officer said he smelled an odor of alcohol coming from the vehicle. He asked the driver to step out of the car and perform field sobriety tests. 

The driver said he had nothing to drink and agreed to the field sobriety tests.  After completing the tests, the officer concluded that the driver was not impaired. 

While still out of the vehicle, the officer asked if there was anything illegal in the car, like drugs or weapons.  The officer testified that after asking that question, the driver’s “demeanor suddenly changed” and he became very nervous.  

Because the driver was acting strange, the officer asked if he could search the car.  The driver refused to give consent.  So, the officer called a canine unit and put the driver in the back of the cruiser while he waited for the dogs to arrive. 

The canine until arrived about 15 minutes later.  The officer asked again if there was anything illegal in the car.  This time the driver admitted that he had marijuana and a pipe in the car’s center console. 

The canine unit searched the car and alerted to the marijuana.  The officers searched and found a bag of marijuana, a marijuana pipe, and a set of scales.  The driver was charged with minor misdemeanor possession of marijuana, possession of drug paraphernalia (which both carry a six month driver’s license suspension), and improper bumper height.

The Motion to Suppress: A Driver Acting Nervous Is Not Enough to Detain Him and Search His Car

In court, the driver moved to suppress all of the evidence of marijuana and paraphernalia found in the car based on a violation of his Fourth Amendment Rights.  

The initial stop for the rear bumper was proper.  Also the officer had a right to ask the driver to conduct field sobriety tests.  But once he passed those tests, he did not have reasonable suspicion to keep the driver any longer. 

Generally, when a cop stops a car for a traffic violation, the officer can only keep the driver for the amount of time necessary to issue a traffic citation and to perform routine procedures, like a computer check on the  driver’s license, registration, and vehicle plates.   An officer cannot detain a driver to do a search of his car or for any other reason on just the officer’s hunch that the driver might be hiding something. 

Here, the officer was not permitted to extend his investigation and continue to detain the driver after he passed the field sobriety tests.  The officer was not allowed to detain the driver while he waited for a canine unit.  

If the dogs had already been there when the traffic stop started, that might be another story.  The U.S. and Ohio Supreme Courts have found that a trained dog sniffing the outside of a car isn’t a “search” within the Fourth Amendment.   So, if the officer had the dogs sniff the car while he was writing the traffic citation, that probably would have been constitutional.

But here, where the officer made him wait for 15 minutes in the back of the cruiser for the canine unit to arrive, is not.   In order to make a driver wait, the officer has to have reasonable suspicion that drugs are in the car.

Here, the prosecutor argued that the officer did have reasonable suspicion because the driver was acting nervous when asked if anything illegal was in the car.   He testified that he didn’t know if it was guns or drugs, but he thought there was “something illegal” in the car based on how nervous the driver was acting.  In other words, he was fishing for evidence of a crime.  

All Marijuana Possession & Paraphernalia Charges Dismissed

The court agreed with the defense.  Just because a driver acts nervous when talking to police cannot on its own support reasonable suspicion to detain him.  There are many reasons why someone would be nervous talking to a police officer during a traffic stop – many of which have nothing to do with illegal activity. 

Because the driver’s Fourth Amendment rights were violated here, all evidence of marijuana, pipe and other paraphernalia found in the car were thrown out.  As a result, all drug-related charges were dismissed.

If you have been charged with possession of marijuana or paraphernalia in Columbus or Delaware County, call our Columbus marijuana possession attorneys for a free consultation – (614) 361-2804.  If the marijuana was found as a result of a search of your car or person by police, it is worth investigating whether the police violated any of your constitutional rights.   If so, like here, there is a chance your charges could be dismissed.  

 

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