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.