April 30, 2014
Ohio Legal Update.

Some Township Officers Cannot Patrol Interstate Highways.
In State v. Brown, 2013-Ohio-5351, the Sixth District Court of Appeals ruled that pursuant to R.C. 4513.39, all state highways are under the exclusive jurisdiction of the state highway patrol, sheriffs, and sheriff’s deputies. But, there are exceptions within the statute. Here is the lay man’s breakdown: If the population you serve as a township police officer is less than 50,000 residents, you can enforce traffic laws on state highways except highways that are a portion of the national highway system located within this state (e.g. 70, 71, 75, 76, 77, and 80). If the population you serve is greater than 50,000 residents, you have the authority to enforce traffic laws on interstate highways, just as the sheriff and state highway patrol does. The “population you serve” is the population you may be dispatched to respond to, not the population that resides within a municipal corporation. This statute has no effect on municipal police officers within their municipal corporation. Oddly, all 60 cases I found that cite R.C. 4513.39 and/or the primary case effecting these decisions, State v. Holbert, 38 Ohio St. 2d 113 (1974), never took the township’s population into account.

Hotel Employee Giving Police Permission to Search Room.
In State v. Wright, 2013-Ohio-4473, the court held that unless a hotel employee has, by an affirmative action, evicted the guest and the guest is aware of the eviction police cannot search a hotel room occupied by a guest if the hotel employee gives you permission. In State v. Allen, 106 F.3d 695 (6th Cir.1997), the hotel manager attempted to take possession of the hotel room after observing contraband in the room by locking the hotel guest out of his room. The court found that the hotel manager’s affirmative act divested Allen of his status as an occupant of the room while concurrently terminating his privacy interest in the hotel room and its contents. In State v. Fleming, 2004-Ohio-5278, the hotel manager requested that Fleming and the other occupant of the room vacate the premises after a report of possible drug activity. The hotel manager used a police escort to aid in the eviction of the parties. Both Allen and Fleming involved hotel staff taking affirmative steps to repossess the room after hotel guests engaged in unauthorized activity, thereby terminating the guests’ reasonable expectations of privacy.

Multiple Pat Downs are Okay for Officer Safety.
In State v. Dunlap, 2013-Ohio-5637, the court held that an officer may pat down a suspect a second time based on his behavior following the first pat down. During a traffic stop, the officer noticed the suspect “messing around with something” and “fidgeting around down inside of the seat.” After producing identification, the suspect continued “fidgeting around” so the officer asked the suspect to step out of the car. The suspect stepped out and consented to a pat down. The officer conducted a pat down and found only some miscellaneous items. The officer told the suspect to get back in the car. After returning to his cruiser to write a citation, the officer noticed that suspect was still fidgeting around in the backseat of the stopped vehicle. The officer asked the suspect to step out of the car again. The officer asked the suspect if he could pat him down one more time. The suspect complied. This time the officer felt a large lump near the suspect’s left armpit. The officer removed a wallet containing approx. $1,400 in cash. The officer returned to the pat down and felt another lump in another pocket. Upon removing the item, the officer found a digital scale about the size and shape of a cell phone with white, powdery residue on it that turned out to be cocaine.

Pacing a Vehicle Requires Maintaining a Constant Distance for a Sufficient Time.
In State v. Jarosz, 2013-Ohio-5839, the court held that an officer can only stop a vehicle for speed by “pacing” when the officer can show that he maintained a constant distance between vehicles for a sufficient amount of time. In this case, a review of the in-car dash cam did not support the OSP Trooper’s testimony that he paced the suspect’s vehicle by maintaining an equal distance from suspect’s vehicle while pacing him. As a result, the trooper lacked RS/PC for stopping the vehicle and the subsequent SFSTs were suppressed.

Use of Partially Marker Cars for Traffic Enforcement.
In State v. Schneller, 2013-Ohio-2976, the court held that R.C. 4549.13 requires that the patrol car be marked in a distinctive manner or color and equipped with at least one flashing, oscillating, or rotating colored light mounted on top of the vehicle. Furthermore, pursuant to R.C. 4549.14, an officer driving in an inadequately marked vehicle that was the arresting officer, or participated in the arrest, is prohibited from testifying against the suspect for misdemeanor violations of vehicle or traffic laws, if the officer was on duty exclusively or for the main purpose of enforcing such laws.

In this particular case, the officer parked in the grass about five to ten feet off the side of the road. The engine was running, but the headlights were out (i.e. watching traffic). The car was all black and only indicated the word “POLICE” in silver letters on the front quarter panel of the cruiser, 3 inches in height and stretching 30 inches across the bottom of the panel. The officer stopped the suspect for OVI and driving on the wrong side of the road. The suspect described the car as “blacked-out,” and police inventory described the car as “unmarked.” The vehicle had no other police logos and had civilian license plates.

Blocking a Person’s Path of Exit / Blocking Vehicle from Backing Up.
In both State v. Goodloe, 2013-Ohio-4934, and State v. Maitland, 2011-Ohio-6244, the courts held that blocking a suspect’s path of exit, either on foot or in a vehicle, constitutes a seizure, unless a reasonable person would believe he was free to leave. In Goodloe, one officer was blocking the suspects route on the sidewalk and that the other officer was within a foot or two of him on the other side. This occurred after the officers pulled their cruiser up right next to the suspect on the sidewalk and approached him. The court ruled that the presence of two uniformed officers positioned on both sides of the suspect on the sidewalk would communicate to a reasonable person that he was not at liberty to ignore the police and walk away, thus amounting to a seizure. In Maitland, the officer pulled his police cruiser behind the suspect’s car, close enough so that he blocked the suspect from pulling out of his parking space. The court concluded that if an officer positions his vehicle so that a person cannot exit a parking lot without asking the officer to move, the officer has exhibited a show of authority constituting a seizure.

Photo Arrays Should be Based on the Description Given by the Witness.
In State v. Hudson, 2013-Ohio-5529, the court ruled that photo arrays are not required to contain photos of people who look identical to the suspect, but should be based on the description given by the witness. In this case, the witness described the man who attacked her as an older black male, between forty and fifty-nine, who possibly had some facial hair. The defense argued suspect’s photo was the only photo in the array who appeared close to 60 years-old and had gray hair. The police officer testified he included images of suspects that had facial hair, were local, appeared to be within the age range, and had prior criminal contacts with police. The court ruled the photo array was not unduly suggestive.

Unarticulated Hunches—“Cop Radar.”
In State v. Boswell, 2014-Ohio-886, the court ruled that police have no right to stop people on a hunch. Police must have a specific reason to believe the person is engaged in criminal activity. Edward Boswell and a friend were walking on the sidewalk at 10:30 a.m. when an officer drove by, stopped, got out, and asked for identification. The officer then asked if they had anything illegal. Boswell’s friend said he did not and gave permission for his backpack to be searched. Inside, the officer found a scale and marijuana flakes. The officer then noticed that Boswell had on a bulky coat and was acting nervous. Boswell told the officer he did not want to be searched. The officer said he was going to search him for weapons and did not need his consent. Inside the coat, the officer found a broken marijuana pipe and a cell phone. Boswell told the officer not to look at the phone, to which the officer said he could search it now or back at the station. The officer then arrested Boswell. At the station, Boswell allowed the officer to look at his phone. The officer found messages about marijuana. Boswell argued that the officer improperly searched him and seized his property. At a suppression hearing, the officer could not point to any fact supporting his conclusion that the defendant was doing something suspicious, which was the key in this case. In fact, the officer in Boswell said he relied on his “cop radar” when he decided to search Boswell. The officer’s testimony amounted to an unparticularized suspicion or hunch, which then constituted an improper Terry stop.

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