In a recent U.S. Supreme Court case in April, the Court found that an anonymous tip can support a DUI stop.
But a more recent Ohio case in May (which doesn’t cite the US Supreme Court case) found the opposite – that one anonymous tip is alone insufficient to justify the police pulling over a car. The case would turn on the facts, though. If multiple identified callers report a weaving vehicle, the police may have sufficient evidence to pull the car over.
In the most recent Ohio case on this issue – State v. Whitaker, 2014-Ohio-2220, an anonymous caller reported that there were intoxicated females with children in a red vehicle were parked behind a bar. An officer observed a vehicle matching the description in the lot that was driving away with two women and some children.
Three police cars pulled up next to the car (the defendant said they boxed her in and she could not leave), but did not activate their lights or siren. The officers approached the car and identified themselves. One officer testified that he smelled the odor of alcohol and the defendant admitted that she had been drinking. She said that she was at the bar to call for a ride because she had her granddaughters with her and she had been drinking.
She was charged with operating a vehicle under the influence of alcohol or drugs (OVI) a child restraint violation, and endangering children.
Investigative Stop or Consensual Encounter?
The first question on appeal was whether this was a consensual encounter or an investigative stop.
For an investigative stop (where the defendant is not free to leave), there must be “reasonable and articulable suspicion of criminal activity.” For a consensual encounter (where the defendant is free to walk away any time), no suspicion of any kind is required.
Here, the court concluded that this was an investigative stop. The car was moving when it was approached by multiple police cruisers. The driver stopped only after the cruisers approached. A reasonable, innocent person would not feel free to leave when her vehicle is surrounded by police. Thus, this was not a consensual police encounter.
Was there Reasonable Suspicion of Criminal Activity?
The anonymous telephone call which brought the police to the scene, “while specific in its description of the vehicle, passengers, and location” did not provide a reasonable basis to suspect criminal activity.
Under Ohio law, “when the stop is based solely on the information from an anonymous informant, it is generally insufficient to form the basis of an officer’s reasonable suspicion of criminal activity.” Additionally, the court noted that “because the specificity of the information, such as location and make/model of the vehicle, does not provide evidence of knowledge of the concealed criminal activity, its reliability is limited to aiding officers in locating the vehicle.” (citing Florida v. J.L., 529 U.S. 266, 272, 120 S.Ct. 1375, 146 L.Ed.2d 254 (2000).
In contrast, the court discussed a previous case – State v. Sabo, 6th Dist. Lucas No. L-08-1452, 2009-Ohio-6979. In that case, a citizen called the police and described the defendant leaving a gas station. The caller described the location, model, make, color and license plate number of his vehicle. Id. The citizen gave his name and contact information. A second identified citizen also called after seeing the defendant at a drive-thru window. Given multiple callers, the court in that case found the warrantless search to be valid.
Unlike in that case, here, the court found that an anonymous caller was not sufficient to stop the car. Thus, the case was thrown out.
The case – State v. Whitaker, 2014-Ohio-2220 – was decided on May 23, 2014 — just a month after the U.S. Supreme Court decided a similar case in Navarette v. California. The Ohio case does not cite the U.S. Supreme Court case. While the U.S. Supreme Court case found that anonymous tip can support a traffic stop for a DUI, the Ohio case found the opposite — an anonymous tip is alone insufficient for a DUI stop by police.
If you were pulled over based on an anonymous tip to police, talk to an Ohio attorney about whether you may have a defense to your Ohio DUI charge. You may be able to argue that the anonymous tip – in the absence of any other indicia of criminal activity – was constitutionally insufficient to support the DUI stop.