CLEVELAND DUI LAWYER

STATE OF OHIO v. 

Defendant 

OHIO 

CASE NO:
Judge
MOTION IN LIMINE 

Defendant hereby moves to suppress all evidence obtained by the State of Ohio during the police traffic stop from the point where the police officer orders the Defendant 

out of his vehicle.

While the court has ruled during the Suppression hearing that this was not a pretextual stop based upon the one-time swerve onto the white line over an almost 12-minute recorded “follow” of the Defendant by the officer, the police officer did not find a crime warranting further investigation until after he ordered the Defendant out of the vehicle - the crime of an expired driver’s license. During the stop the officer is heard telling the Defendant that “he almost caused a wreck,” which is patently false, then justifying the “wordless arrest” of the defendant - i.e. a short detention in the secured rear of the squad car to permit the police officer to continue to search for crimes by obtaining invalid consent to search the Defendant’s vehicle - by discovering that the Defendant’s license is suspended. The officer then falsely states that the Defendant has a passenger in the vehicle, the second intentional misleading of the Defendant. Finally, after getting the illegally detained Defendant within a few feet of himself in the closed confines of his patrol car - viola – the officer at last smells the “odor of alcohol.” 

This smell test – or in the Ohio Supreme Court’s words, “indicia of other crimes” - came too late to justify the officer’s actions. Thus, the dashcam video of, and the officer’s testimony  

about, what came after the officer’s illegal seizure of the Defendant’s person must be excluded from the jury. 

The Ohio Eighth Appellate District’s last ruling on this issue was in State v. Ware, Court of Appeals of Ohio, Eighth Appellate District, 2011-Ohio-5665 (Cuyahoga County 2011): 

A police officer may stop or detain an individual without probable cause when the officer has reasonable suspicion based on specific, articulable facts that criminal activity is afoot. Terry at 16. Accordingly, an "investigatory stop does not violate the Fourth Amendment * * * if the police have reasonable suspicion that 'the person stopped is, or is about to be, engaged in criminal activity.'" State v. Jordan, 104 Ohio St.3d 21, 35, 2004 Ohio 6085, 817 N.E.2d 864, quoting United States v. Cortez (1981), 449 U.S. 411, 417, 101 S.Ct. 690, 66 L.Ed.2d 621.

[*P18] Reasonable suspicion entails some minimal level of objective justification, "that is, something more than an inchoate and unparticularized suspicion or 'hunch,' but less than the level of suspicion required for probable cause." State v. Jones (1990), 70 Ohio App.3d 554, 556-557, 591 N.E.2d 810, 8 Anderson's Ohio App. Cas. 48, citing Terry at 27. Accordingly, "'a police officer may not rely on good faith and inarticulate hunches to meet the Terry standard of reasonable suspicion." Jones at 557. Reasonable suspicion requires that the officer "point to specific, articulable facts which, together with rational inferences from those facts, reasonably warrant the intrusion." Id., citing Terry at 21. 

[*P19] "In making a determination of reasonable suspicion, the relevant inquiry is not whether particular conduct is innocent or guilty, but the degree of suspicion that attaches to particular types of noncriminal acts." State v. Taylor (1995), 106 Ohio App.3d 741, 747- 749, 667 N.E.2d 60.An appellate court views the propriety of a police officer's investigative stop in light of the totality of the surrounding circumstances. State v. Bobo (1988), 37 Ohio St.3d 177, 524 N.E.2d 489, paragraph one of the syllabus, approving and following State v. Freeman (1980), 64 Ohio St.2d 291, 414 N.E.2d 1044, paragraph one of the syllabus. "Assessing the need for a brief stop, 'the circumstances * * * before [the officer] are not to be dissected and viewed singly; rather they must be considered as a whole.'" Freeman at 295, quoting United States v. Hall (C.A.D.C.1976), 525 F.2d 857, 859, 174 U.S. App. D.C. 13. Officers may "draw on their own experience and specialized training to make inferences from and deductions about the cumulative information available to them that 'might well elude an untrained person.'"United States v. Arvizu (2002), 534 U.S. 266, 273, 122 S.Ct. 744, 151 L.Ed.2d 740, quoting Cortez at 418. 

[*P20] Based on the examination of the "totality of the surrounding circumstances," the officers in this case were justified to engage in a brief investigatory stop of appellant. The record reflects that the officers reasonably believed that the white vehicle parked outside the victim's home was connected to the reported domestic violence altercation. However, upon arriving at the scene of the altercation, the officers were unable to determine the extent of the white vehicle's involvement in the purported crime and were justified to monitor the vehicle with caution once they observed two unidentified individuals inside the vehicle. During the suppression hearing, Officers Sanderson and Alford testified that, in their experience, domestic violence situations frequently involve violent and chaotic situations. Therefore, in light of the facts known to the officers at the time they arrived at the scene, it was reasonable for them to fear the presence of a weapon on the reported suspect and/or the individuals located within the vehicle. 

[*P21] Faced with a potentially violent and unpredictable situation late at night, coupled with Starks's physical resistance to a pat down and appellant's simultaneous furtive movements in the vehicle believed to be connected to the crime, we find that the officers had articulable grounds to suspect criminal activity. The officers testified that appellant's furtive movements were consistent with an individual reaching for a weapon. In these situations, a brief investigatory stop of a suspicious individual, in order to maintain the status quo momentarily while obtaining more information, is reasonable and is in the best interests of the officers' safety. Adams v. Williams (1972), 407 U.S. 143, 145-46, 92 S.Ct. 1921, 32 L.Ed.2d 612. Accordingly, we conclude that the officers did not abridge the protections guaranteed by the Fourth Amendment. Hence, the trial court did not err in denying the motion to suppress. 

In this case:

1. There is no “criminal activity afoot” at the point in the stop when the officer orders the Defendant out of the vehicle.
    
2. There are no “specific articulable facts” along with any logical inference that supports the officer’s ordering the Defendant out of the vehicle. Good faith and hunches don’t count.
    
3. There is no measurable “degree of suspicion” attached to any of the Defendant’s non- criminal acts. The Defendant was just sitting there with his hands up.

To ask a jury to determine that the Defendant was drunk beyond reasonable doubt at this point in the stop is simply ludicrous. Our courts must gatekeep 4th Amendment violations before they get to a jury. Although an officer may draw from his own experience and specialized training to make inferences about the cumulative information available to the officer that may elude an average person, no person would reasonably suspect the Defendant to be drunk while sitting in his car based upon the singular information available to his officer, the touching of the white line once in 12 minutes on a narrow lane overpass with a car approaching rapidly in the Defendant’s blind spot.

The jury’s job is not to determine if the officer’s stop was justified, but if the facts indicate impairment. There are no facts here until after the officer seizes the Defendant and puts him in “temporary custody” so he can get a whiff of the Defendant’s breath from a confined space. If we are going to permit juries to convict people for smelling like alcohol, we are in big trouble. This court should prevent the jury from even hearing that 

information. 

/s JAMES SIDNEY JONES (64099) 

                                   _____________________________

JAMES SIDNEY JONES, LPA 

attorneyjamessidneyjones@gmail.com 

(216) 797-9520 

CERTIFICATE OF SERVICE 

I CERTIFY that a true copy of the foregoing has been e-filed this 26th day of February 2023 with 

s/JAMES SIDNEY JONES (64099) 

                                   _______________________________________

JAMES SIDNEY JONES, LPA 

Counsel for Defendant