APPELLEE'S MEMORANDUM IN OPPOSITION OF JURISDICTION

Transcription

1 IN THE SUPREME COURT OF OHIO ^., CITY OF COLUMBUS Case No vs. Plaintiff-Appellee, On Appeal from the Franklin County Court of Appeals, Tenth Appellate District OSCAR FUENTES Defendant-Appellant. Court of Appeals Case No. 13AP-802 APPELLEE'S MEMORANDUM IN OPPOSITION OF JURISDICTION CITY OF COI:UMBUS, DEPARTMENT OF LAW RICHARD C. PFEIFFER, JR. ( ), CITY ATTORNEY LARA N. BAKER ( ), CITY PROSECUTOR MELANIE R. TOBIAS ( ), COUNSEL OF RECORD 375 South High Street, 17th Floor Columbus, Ohio Telephone: (614) Fax: (614) COUNSEL FOR APPELLEE, CITY OF COLUMBUS MEGAN E. GRANT The Law Firm of Megan E. Grant, LLC 1188 South High Street Columbus, Ohio Telephone: (614) Fax: (614) ,yz si ;, s;si ' sg Gey ^,,,, ^, yryr K %.i^!f., Or? i. r..1i,: '9^^^ ^/ COUNSEL FOR APPELLANT- OSCAR FUENTES

2 TABLE OF CONTENTS PAGE INTRODUCTION STATElVIENT OF WHY THIS CASE DOES NOT INVOLVE A SUBSTANTIAL CONSTITUTIONAL QUESTION AND IS NOT OF PUBLIC OR GREAT GENERAL INTEREST... 1 STATEMENT OF FACTS... 2 Reply to Appellant's Pronosition of Law... 3 A citizen informant tip reporting that a person has been drinking all day at the caller's place of business, is intoxicated, and has driven away in a motor vehicle contains sufficient, descriptive evidence of possible impaired driving to justify an investigative stop... 3 CONCLUSION... 6 CERTIFICATE OF SERVICE... 7 i

3 INTROAtTCTION This matter involves a fact intensive case that does not implicate a substantial constitutional question or issue of public or great general interest. Appellant argues that when the facts of his case are applied to existing law, the courts erred in finding that a citizen informant's tip to a police dispatcher was sufficient to constitute reasonable suspicion for a traffic stop. This argument does not seek to resolve any conflict in the law among lower courts or to clarify existing law. Rather, it is fact-specific and has minimal application to future cases. Because there are no significant or unique legal issues that merit additional analysis in Appellant's proposition of law, and Appellant's fact-specific case as applied to well-established law would have minimal application to future cases, this Court should decline jurisdiction for the reasons discussed in greater detail below. STAT'EIVIENT OF WHY THIS CASE DOES NOT INVOLVE A SUBSTANTIAL CONSTITUTIONAL QUESTION AND IS NOT OF PUBLIC OR GREAT GENERAL INTEREST A citizen infoi-mant tip was made to the Columbus Division of Police indicating that one of the caller's employees was leaving work in an intoxicated state, driving a vehicle, after drinking all day on the job. Colunibus v. Fuentes, 10`h Dist. no. 13AP-802, 2014-Ohio-3337,T4. The caller specifically identified the type of car driven by the employee, as well as the license plate number of the vehicle. Id. at ^,4. Based upon this information, officers stopped Appellant's vehicle and as a result of the stop, Appellant was charged with operating a motor vehicle under the influence (OVI) and OVI per se. Appellant argues that the citizen tip provided to the police did not provide sufficient evidence of criminal activity td establish reasonable suspicion to stop Appellant. The lower court, in reversing the decision of trial court and finding that there was reasonable suspicion to 1

4 stop Appellant, followed this Court's decision in Maumee v. Weisner, 87 Ohio St.3d 295 (1999) wherein this Court held that "Where * * * the information possessed by the police before the stop stems solely from an informant's tip, the determination of reasonable suspicion will be limited to an examination of the weight and reliability due that tip. ***The appropriate analysis, then, is whether the tip itself has sufficient indicia of reliability to justify the investigative stop." Id. at 299. In applying the standard set forth in Maumee, the lower coui-t determined that a tip from an identified citizen that indicated that Appellant had been drinking all day at the caller's place of business, was intoxicated, arid had gotten into a car and driven away was sufficient to establish reasonable suspicion to stop Appellant's vehicle. Because the tip itself contained sufficient evidence of criminal behavior, the police need not personally witness any traffic violations or erratic driving. Because Appellant's proposition of law does not seek to resolve any conflict among the lower courts or clarify existing law, and any decision from this Court on this fact-specific issue would have minimal application to future cases, this Court should decline jurisdiction. STATEMENT OF FACTS On June 7, 2013 at approximately 9:00 p.m., Columbus Police Officer Marcus Miller received a radio dispatch indicating a possible impaired driver operating a vehicle on Broad St_ east of I-270. Fuentes at 5; Tr The radio dispatch relayed that a business manager called in to report that a person was leaving the business in a vehicle after drinking there all day and was intoxicated. Tr. 8, 18. The caller identified the driver as a Hispanic male driving a black car with Illinois tag number R Tr. 8. The caller told the dispatcher that the vehicle was driving toward the area of Broad St. and Tr. 8. It was also commuriicated to Officer 2

5 Miller that this same caller had called in the previous day reporting the same behavior by the suspect, leaving the business intoxicated after drinking there all day. Tr. 19. In response to the radio dispatch, Officer Miller and his partner traveled east on Broad St. and soon passed a black vehicle with Illinois tags that matched the tag number reported to dispatch. Tr. 10. The vehicle was headed west on Broad St., just east of Tr. 10. The driver, a Hispanic male, matched the description given by the dispatch caller. Tr. 10. Officer Miller turned around and stopped the vehicle. Tr. 15. Officer Miller observed no erratic driving or traffic oiferises prior to stopping the vehicle. Tr. 15, 18. Officer Miller discovered that the vehicle was being driven by Appellee, and subsequently arrested Appellee for operating a motor vehicle while under the influenep of alcohol (hereinafter OVI). Reply to Appellant's Proposition of Law A citizen informant tip reporting that a person has been drinking all day at the caller's place of business, is intoxicated, and has driven away in a motor vehicle contains sufficient, descriptive evidence of possible impaired driving to justify an investigative stop. It is well settled that a brief investigative stop of an individual is perniitted upon less than probable cause. Ierry v. Ohio ( 1968), 392 U.S. 1. The United States Supreme Court has long recognized the right of police officers to stop an individual in order to conduct an investigation into criminal activity. In Terry v. Ohio, the Court held that a police officer may in appropriate circumstances and in an appropriate manner approach a person for purposes of investigating possibly criminal behavior even though there is no probable cause to make an arrest. Id. at 22. The Court fui-ther stated that "in justifying the particular intrusion the police officer must be able to point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intru5ion." Id. 3

6 A police officer need not always have knowledge of the specific facts justifying a stop and may rely upon a dispatch or informant tip. An investigative stop based upon information received from an informant will be upheld when, based upon the totality of the circumstances, the tip had sufficient indicia of reliability to justify the investigative stop. Maumee v. Weisner (1999), 87 Ohio St.3d 295; citing Illinois v. Gates (1983), 462 U.S In determining whether an informant's tip provides an officer with reasonable suspicion of criminal activity, Ohio courts have identified three classes of informants: (1) the anonymous informant; (2) the known informant (someone from the criminal world who has provided previous reliable tips); and (3) the identified citizen informant. Weisner at 300. The categorization of a given informant is considered relevant in determiiiing an informant's reliability. Id. Courts have credited the identified citizen informant with greater reliability than an anonymous informant. Id. "An anonymous informant is comparatively uraeliable and his tip, therefore, will generally require independent police corroboration." Id. In contrast, "an identified citizen infor-mant may be highly reliable and, therefore, a strong showing as to the other indicia of reliability may be unnecessary." Id. The relevant facts in this case are that the owner or manager of a Columbus business called the police to report that ari individual was leaving the business in a vehicle and had been there drinking all day and was intoxicated. Fuentes at 4; Tr. 8, 10, 18. 'This was the second time this caller,had contacted the'police to report that this person was leaving the business place intoxicated after drinking all day. Tr. 11, 19. The caller identified the type of vehicle being driven as black in color with Illinois plates and described that the car was headed toward and Broa.d St. Tr. 8. 4

7 Officer Miller and his partner responded to the dispatch and observed a vehicle matching the caller's description traveling westbound on Broad St., just east of Tr. 10. The driver of the vehicle also matched the caller's description. Tr. 10. Upon identifying the car and driver, the officers initiated a traffic stop. Tr. 11. The officers did not observe the identified vehicle commit any traffic violations prior to their stop of the car. Tr , 18. In examining the validity of Appellee's traffic stop, the question is whether the information provided to the dispatcher by the caller gave rise to a reasonable suspicion that Appellant was operating a motor vehicle while under the influence. The lower court, following this Court's reasoning in %17aumee v. Weisner, did not err when it held that the content of the identified citizen tip was sufficient to establish reasonable suspicion to stop Appellant's vehicle. Fuentes at 15. The identified caller indicated that Appellant had been drinkingall day at the caller's place of business, became intoxicated, and then got into a car and drove away. This information, provided by an identified citizen informant, was highly reliable and specific, and gave the police reasonable suspicion to believe that Appellant was operating a vehicle while under the influence of alcohol. Id. at 15. The United States Supreme Court's recent decision in Navarette v. Cal^ornia, 134 S.Ct.1683 (2014) does not change the analysis in this case. In Navarette, the Court examined whether an anonymous tip alone provided sufficient reasonable suspicion to conduct an investigatory stop of a vehicle to determine whether the driver was intoxicated. The Court reiterated that generally an anonymous tip by itself will seldom demonstrate the infortnant's basis of knowledge and veracity to allow for the police to rely on its credibility, but that "under appropriate circumstances, an anonymous tip can demonstrate `sufficient indicia of reliability to provide reasonable suspicion to make [an] investigatory stop. "' Id. at * The Court then 5

8 proceeded to evaluate whether the anonymous tip at issue in the case, a caller reporting that someone had just "run her off the road" along with a description of the vehicle, was sufficient to warrant an investigative stop. In concluding that the facts in Navarette suppor-ted a finding of reasonable suspicion to conduct an investigatory stop, the Court held that the fact that the caller provided first hand, eyewitness knowledge of the behavior of the driver lent support to the tip's reliability. Id. at * 1689.Purther, the fact that police were able to locate the vehicle identified by the anonymous caller in the area described the caller soon after the tip was reported was a reliable indicator of the veracity of the tip. Id, at * In the instartt case, the tip relied on the police was not an anonymous tip, as in Navarette, reliability. but one made by an identified citizen which carries with it a greater indicia of Weisner at 300. The tip provided specific information evidencing criminal, activity: the caller indicated that Appellant had been drinking all day at the caller's place of business, became intoxicated, and then got into a car and drove away. Additionally, as in Navarette, the caller provided a specific, detailed description of the vehicle and the police were able to quickly locate it in the area described by the caller, Accordingly, under the totality of the circumstances, the information provided to the police by the identified citizen justified an investigatory stop of Appellant's vehicle. CONCLUSION Appellant does not present unique issues of public or great general interest and does not raise substantial constitutional questions. Because Appellant presents no persuasive argument that the lower court's decision should be reviewed by this Court, the State respectfiilly requests that this Court decline to exercise jurisdiction over this matter. 6 Respectfully submitted,

9 . CITY OF COLUMBUS DEPARTMENT OF LAW RICHARD C. PFEIFFER, JR. ( ) CITY ATTORNEY LARA N. BAKER ( ) CITY PROSECUTOR MELANIE R. TOBIAS (00 9) ASSISTAN'T CITY PROSECUTOR 375 South High Street. 17th Floor Columbus, Ohio Telephone: (614) mrtobias(c^,c columbus.gov COUNSEL FOR PLAINTIFF-APPELLEE CERTIFICATE OF SERVICE This is to certify that a true copy of the foregoing Appellee's Memorandum in Opposition of Jurisdiction was delivered by regular U.S. Mail to Megan E. Grant, Counsel for Defendant- Appellant, 1188 South High Street, Columbus, Ohio, 43206, this 15th day of October, Melanie. Tobias (00704 i Assistant City Prosecutor 7