DRIVER ARGUES NEW ALBANY POLICE PULLING HIM OVER WITHOUT A VALID REASON
A driver in New Albany claims the police pulled him over only for the reason of investigating a tip that he had seemed impaired when inside a gas station. In Village of New Albany v. Dalton, 104 Ohio App. 3d 307, the Court discussed the issue of pretextual stops by police.
A pretextual stop is one where a police officer pulls someone over claiming a minor traffic violation when in fact the officer wants to investigate more serious crimes based on the driver’s race, appearance or the officer’s bias. The standard is whether a reasonable officer would have made the same stop in the absence of the invalid purpose.
Here, because the officer did in fact observe a tail light violation and cited the driver for this violation, the stop was not deemed pretextual. However, the conviction was ultimately reversed based on a faulty complaint that was not properly attested and signed by the New Albany mayor.
DRIVER PULLED OVER AFTER GAS STATION ATTENDANT TOLD POLICE DRIVER WAS ACTING ODDLY
In Dalton, a New Albany police officer went to a gas station in New Albany around 4:00am when Defendant was just leaving the store. The gas station attendant approached the New Albany officer and told him that he thought defendant might be impaired because he had requested a $500 cash advance on his credit card.
When pressed for details, the attendant could not say that defendant looked impaired or that he smelled alcohol on defendant’s breath, only that his whole demeanor was “very off.” Based on the information supplied by the attendant, the New Albany police officer left the store to find defendant.
While following defendant’s truck, the officer did not notice anything about defendant’s driving to indicate impairment. Defendant was driving slowly; however, this was not considered unusual considering the early morning hour. The officer did notice, however, that he was unable to read defendant’s rear registration plate from a distance of “three or four car lengths.”
The officer pulled defendant over to investigate the license plate light. After defendant exited his vehicle, he approached the officer in a threatening manner. The Officer thought defendant might be impaired because defendant was swaying back and forth and his eyes were bloodshot; however, he did not detect any odor of alcohol.
The New Albany officer asked defendant to perform a field sobriety test; however, the test was never completed due to defendant’s erratic behavior. Although the officer felt that defendant was impaired in some way, he did not cite defendant for driving under the influence of drugs or alcohol.
Instead, he issued assault and disorderly conduct complaints against defendant, as well as a traffic citation for violation of the New Albany ordinance requiring “Illumination of Rear License Plate.”
Defendant pled not guilty; all charges were subsequently transferred from New Albany Mayor’s Court to the Franklin County Municipal Court.
Defendant filed a motion to suppress evidence, contending that the officer lacked an articulable, reasonable suspicion to justify the stop of his vehicle. He was found guilty in the trial court and appealed.
DRIVER ARGUES NEW ALBANY POLICE OFFICER LACKED REASONABLE SUSPICION TO PULL THE DRIVER OVER
On appeal, defendant argued that stopping him for a taillight violation was “pretextual” — that the officer’s true reason for pulling him over was to follow up on the gas station attendant’s assertion that the driver was possibly impaired.
Courts in Ohio have long held that for a police officer to conduct a traffic stop, the officer must show that he had a reasonable and articulable suspicion that defendant was violating the law. Delaware v. Prouse (1979), 440 U.S. 648
The Defendant in Dalton claims the officer only used the violation of a improperly lit license plate light as an excuse to investigate the Defendant for potentially driving while impaired. Defendant states that had there not been a tip from the gas station attendant, the police officer would have not pulled the defendant over.
DID NEW ALBANY POLICE CONDUCT A “PRETEXUAL” STOP?
A stop is pretextual if police use a legal justification for making the stop to search for evidence of unrelated crimes without probable cause or reasonable suspicion.
In State v. Richardson, 94 Ohio App. 3d 501, the Court held that if there is evidence that the police used a traffic violation as a way to investigate more serious crimes based on a defendant’s race, appearance, or a police officer’s personal bias, then a court should not uphold a conviction where the stop is found to be pretextual.
The test for a pretextual stop “is not whether the officer could validly have made the stop but whether under the same circumstances a reasonable officer would have made the stop in the absence of the invalid purpose.” State v. Spencer (1991), 75 Ohio App.3d 581, 585, 600 N.E.2d 335, 337. In assessing whether a stop or an arrest is illegitimately pretextual, this test focuses on things such as deviations from an officer’s usual routine or police department practice. State v. Richardson (1994), 94 Ohio App.3d 501, 507, 641 N.E.2d 216, 220.
Although defendant argues that the officer only stopped him to investigate the gas station attendant’s claims of impairment, the evidence established that the officer personally observed a violation of New Albany Village Ordinance governing rear license plate illumination. Defendant was issued a citation for that offense. Thus, the court found no factual basis to support the claim of pretext.
CHARGING OFFICER FAILED TO PROVIDE A PROPERLY ATTESTED AND SIGNED COMPLAINT
Second, Defendant argued that the charging officer failed to provide a properly attested, signed and sworn jurat with the short form complaints issued on the disorderly conduct and assault charges. Specifically, defendant argues that the criminal complaints were not properly executed in accordance with Crim.R. 3, as they were not made “under oath.”
Pursuant to Crim.R. 3, a complaint must be “made upon oath before any person authorized by law to administer oaths.”
At trial, the officer admitted at trial that he did not swear to the complaints before the mayor of New Albany, whose name appears on the jurat. He further admitted that the mayor’s purported signature was actually only a stamp. Instead, he stated that he swore to the complaints before his sergeant, who he thought was a notary. However, the sergeant’s acknowledgement does not appear on either complaint.
The filing of a valid complaint is a necessary prerequisite to a court’s acquiring jurisdiction. Columbus v. Jackson (1952), 93 Ohio App. 516, 51 O.O. 222, 114 N.E.2d 60.
Since the charging officer in the instant case did not file properly sworn complaints in compliance with Crim.R. 3, the trial court did not have jurisdiction of the subject matter regarding the disorderly conduct and assault charges. Thus, the court found his convictions to be void and reversed.