City of Toledo v. Elkin

647 N.E.2d 569, 68 Ohio Misc. 2d 59, 1994 Ohio Misc. LEXIS 74
CourtToledo Municipal Court
DecidedAugust 6, 1994
DocketNo. TRC93-22201-0101
StatusPublished
Cited by3 cases

This text of 647 N.E.2d 569 (City of Toledo v. Elkin) is published on Counsel Stack Legal Research, covering Toledo Municipal Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
City of Toledo v. Elkin, 647 N.E.2d 569, 68 Ohio Misc. 2d 59, 1994 Ohio Misc. LEXIS 74 (Ohio Super. Ct. 1994).

Opinion

Thomas J. Osowik, Judge.

The court finds that this case came on for determination by the court of defendant Beverly Elkin’s motion to suppress, after hearing on March 11, 1994 [61]*61and supplemental memorandum submitted by the defendant on April 11,1994 and on April 22, 1994.

The underlying facts of the case are as follows. On September 6, 1993 at approximately 8:40 p.m., Toledo Police Officers Gomez and Wizgen responded to an assault complaint. Upon arriving at the complainant’s residence, the victim/complainant indicated that the perpetrator of the offense, known to the victim, was operating her vehicle and, in fact, was driving down an alley as the officers and complainant spoke. The complainant identified the defendant’s vehicle and pointed the vehicle out to the officers.

Based upon this information, the officers approached the vehicle. Upon speaking with the defendant, Officer Wizgen observed some signs of alcohol intoxication, namely, the smell of alcohol on her breath, glassy eyes, and slurred speech. The defendant was then asked to perform some sobriety tests. The defendant was given the following tests: recitation of the alphabet, one-leg stand, walk and turn, finger to nose, and the horizontal gaze nystagmus. According to the officer’s observations, the defendant failed the one-leg stand, walk and turn, and the horizontal gaze nystagmus.

The defendant essentially argues that her motion to suppress should be granted on two grounds: (1) the initial stop made by the police officers was unlawful, and (2) the officers lacked probable cause to make the arrest.

The Fourth Amendment to the United States Constitution and Section 14, Article I of the Ohio Constitution guarantee that “the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures shall not be violated * * *.” These provisions grant to the citizens of Ohio what is among our most cherished of constitutional rights.

“The basic purpose * * * [of these constitutional provisions] is to safeguard the privacy and security of individuals against arbitrary invasions by governmental officials.” Camara v. Mun. Court (1967), 387 U.S. 523, 528, 87 S.Ct. 1727, 1730, 18 L.Ed.2d 930, 935. The fundamental nature of this guarantee has long been noted:

“No right is held more sacred, or is more carefully guarded, by the common law, than the right of every individual to the possession and control of his own person, free from all restraint or interference of others, unless by clear and unquestionable authority of law.” Union Pacific RR. Co. v. Botsford (1891), 141 U.S. 250, 251, 11 S.Ct. 1000, 1001, 35 L.Ed. 734, 737.

As Justice Brandéis expressed in words which continue to animate and inspire our vision of the great privilege of American citizenship as much today as they did almost seventy years ago:

[62]*62“The makers of our constitution undertook to secure conditions favorable to the pursuit of happiness. They recognized the significance of man’s spiritual nature, of his feelings and of his intellect. They knew that only part of the pain, pleasure and satisfactions of life are to be found in material things. They sought to protect Americans in their beliefs, their thoughts, their emotions and their sensations. They conferred, as against the government, the right to be let alone — the most comprehensive of rights and the right most valued by civilized men. To protect that right, every unjustifiable intrusion by the government on the privacy of the individual, whatever the means employed, must be deemed a violation of the Fourth Amendment.” Olmstead v. United States (1928), 277 U.S. 438, 478, 48 S.Ct. 564, 572, 72 L.Ed. 944, 956 (dissenting).

The United States Supreme Court has set the standard for determining the propriety of an automobile stop. In Delaware v. Prouse (1979), 440 U.S. 648, 99 S.Ct. 1391, 59 L.Ed.2d 660, the court held, at 663, 99 S.Ct. at 1401, 59 L.Ed.2d at 673:

“We hold that except in those situations in which there is 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 law, stopping an automobile and detaining the driver in order to check his driver’s license and the registration of the automobile are unreasonable under the Fourth Amendment.”

Thus, if there exist specific articulable facts that a criminal violation has occurred, or is occurring, the vehicle may be stopped and the driver detained for further investigation. The propriety of an investigative stop must be determined in light of the totality of the surrounding circumstances. State v. Freeman (1980), 64 Ohio St.2d 291, 18 O.O.3d 472, 414 N.E.2d 1044.

The defendant argues that the officers did not possess the requisite articulable and reasonable suspicion that she was engaged in any unlawful activity. This argument is premised on the assertion that information obtained from an informant’s tip does not possess the necessary degree of trustworthiness and requires independent corroboration by the arresting officer. The defendant contends, therefore, that the stop was unjustified and constituted a violation of her rights under the Fourth Amendment to the United States Constitution and Section 14, Article I of the Ohio Constitution.

As support, the defendant cites the opinion of the Sixth District Court of Appeals in State v. Haupricht (Aug. 3,1990), Lucas App. No. 1-89-202, unreported, 1990 WL 109965, in which the court held that when an officer stops and detains an individual based upon a police dispatch bulletin, that officer may rely on that bulletin to seize the person; however, in order for the seizure to be [63]*63constitutional, the bulletin must be issued on the basis of articulable facts which gave rise to the conclusion that there was reasonable suspicion that the individual was involved in some criminal activity. That case involved complaints about two intoxicated persons, possible patrons, at an Ohio Turnpike Plaza and, ultimately, two persons whom the officers approached, without any observation of unusual behavior.

The case before the court is factually distinguishable: police were called to respond to an assault and to make out a report on an assault. Upon arrival, the complaining witness, the minor victim’s mother, indicated to the police officers that the suspect in the assault was several doors down. Although the witnesses who were interviewed did not know the suspect’s name, they knew where she was and knew that she was about to leave the house upon the officers’ arrival. In fact, while the officers were interviewing the witnesses, the suspect (defendant herein) appeared and drove a vehicle down the alley. The defendant, who was operating the vehicle, was pointed out by the victim’s mother as the suspect.

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Bluebook (online)
647 N.E.2d 569, 68 Ohio Misc. 2d 59, 1994 Ohio Misc. LEXIS 74, Counsel Stack Legal Research, https://law.counselstack.com/opinion/city-of-toledo-v-elkin-ohmunicttoledo-1994.