“If you see something, say something,” the state of Ohio urges in a brief submitted to the Ohio Supreme Court, quoting a well-known U.S. Department of Homeland Security request to all citizens.

“By being alert and reporting suspicious activity to your local law enforcement, you can protect your family, neighbors, and community, the state asserts.

But what must be said? And what must a citizen do after saying something? Those questions and others come before the Court next week regarding the rights of a state trooper, whose follow up to a citizen’s call to action resulted in a motorist’s arrest for operating a vehicle under the influence of alcohol (OVI.)

The motorist successfully argued in an appeals court that a state trooper had no right to stop her after an unidentified customer shouted across a filling station parking lot: Hey, you need to stop that vehicle. That lady is drunk.

The state is asking the Supreme Court to overturn the lower court rulings and find the tip was enough to empower the trooper to launch an investigation of Sherry Tidwell, whose blood-alcohol level tested more than twice the legal limit when she was stopped in November 2017.

The Court will hear oral arguments in State v. Tidwell and seven other cases during a two-day session on March 30 and 31.

Lot Encounter Leads to Arrest

Ohio State Highway Patrol Sergeant Jacques Illanz was parked in a Speedway lot, wrapping up a report on a vehicle accident. Suddenly, a man called out from the doorway of the Speedway. He directed the officer’s attention to an SUV in the parking lot and warned the driver was drunk.

Illanz watched the vehicle pull slowly backward out of a parking space and move slowly forward. He saw the face of the driver, later identified as Tidwell, and described her as having a “blank stare.”

Illanz walked in front of Tidwell’s SUV and ordered her to stop, which she did. Tidwell rolled down her window, and Illanz detected a strong odor of alcohol coming from the vehicle. He described Tidwell’s eyes as “bloodshot and glassy.” As Illanz engaged Tidwell in questioning, a Hamilton County sheriff’s deputy arrived. The deputy administered a field sobriety test to Tidwell and arrested her for OVI.

Illanz went into the Speedway store to look for the citizen who called out to him. He couldn’t recall what the man was wearing, but could identify him as a white male with brown hair. Illanz believed it was the clerk at the Speedway who called out to him. The clerk told Illanz that he sold Tidwell alcohol and instructed a departing customer to call out to the officer. The customer departed without speaking again to the officer.

Driver Contests Arrest

Tidwell filed a motion to suppress the evidence in Hamilton County Municipal Court, arguing that Illanz lacked reasonable suspicion to stop her because the stop was based on an anonymous, unreliable tip. Doing so violated her rights against unlawful searches and seizures under the Fourth Amendment to the U.S. Constitution, she asserted. The Hamilton County Prosecutor’s Office argued Illanz was justified in waving down Tidwell to investigate after receiving a presumably reliable citizen-informant tip.

The municipal court agreed to suppress the evidence, and the prosecutor appealed to the First District Court of Appeals. The First District affirmed the trial court’s decision, and the prosecutor appealed to the Supreme Court, which agreed to hear the case.

Reliance on Tip Debated
The county prosecutor has agreed to split its oral argument time with the Ohio Attorney General’s Office. The state emphasizes the presumed reliability of tips that come from citizens making face-to-face contact with law enforcement, especially when the information being relayed concerns an incident currently taking place in front of the tipster.

Tidwell’s argument for suppression is supported by the Ohio Public Defender’s Office, which submitted an amicus curiae brief in the case. The public defender’s office asserts the state wants to elevate the status of the tipster over the quality of the tip. Doing so not only “eviscerates the protections provided by the Fourth Amendment, it defies reason,” the public defender argues.

While anonymous tips usually require further investigation from a police officer before there is reasonable suspicion to make an investigatory stop, the prosecutor explains, citizen-informants are presumed reliable, and the information they provide doesn’t need to be supported by independent observations from police officers.

Citizen-informants are considered reliable because they are acting out of their civic duty and they face the threat of being arrested themselves if making false statements to law enforcement, the prosecutor maintains.

Illanz didn’t need to know the identity of the man who yelled to him, and his own observation of Tidwell’s slow moves and “blank stare” were enough to make the stop, the state maintains.

Tidwell counters that the U.S. Supreme Court has required more information than a bare allegation of intoxication, especially since there is no evidence the customer even encountered Tidwell.

For an officer to have reasonable suspicion for an investigatory stop, “the tip must not only contain detailed facts, but also predict future activities, or provide a means to test the informant’s credibility,” the high court stated.

The trooper did nothing to test the credibility of the tip or even ask the tipster to stand by for a few moments, Tidwell asserts. Illanz’ own observations failed to create reasonable suspicion, she adds. Illanz admitted that driving slowly in a crowded parking lot was a prudent way to proceed, and the municipal court recognized a “blank stare” isn’t a documented sign of alcohol impairment.

“If a blank stare is indicative of intoxication, then attorneys are often regularly presumptively intoxicated while attending continuing legal education events statewide. Students are presumptively intoxicated during algebra class,” Tidwell concludes.

Oral Argument Details
The Supreme Court will consider Tidwell and three other cases on March 30 and four more on March 31. Oral arguments begin each day at 9 a.m.

Because of the coronavirus health crisis, the Court will hold its session by videoconference. The arguments will be streamed live online at sc.ohio.gov and broadcast live, and archived, on The Ohio Channel.

In addition to these highlights, the Court’s Office of Public Information released preview articles today about each case, available through the case-name links.

Tuesday, March 30
Following colon surgery and his release after a week in a Cincinnati hospital, a man returned to the hospital complaining of shortness of breath. During a CT scan, the man stopped breathing and had to be resuscitated. The lack of oxygen left the man in a vegetative state. His brother sued, and the hospital, surgeon, and primary care doctor agreed to a settlement. A jury, which heard testimony from experts, found the emergency department physician wasn’t negligent. In Johnson v. Abdullah, the doctor contests the appellate court’s order of a new trial with no testimony from the Brigham Health chief operating officer, who is an expert in intubation, because he didn’t spend enough time in active clinical practice.

During a recess in a Richland County murder trial, a fight started outside the courtroom, breaking an M&M vending machine. The judge closed the courtroom for the rest of the trial, allowing only the families of the defendant and the victim to remain. The man’s conviction was overturned on because the court determined his constitutional right to a public trial was violated. In State v. Bond, the maintains the man’s rights weren’t violated because the trial was closed for only half of the trial, some people were allowed to stay in court, and the judge explained why the courtroom was being closed. The man counters that the judge didn’t give a substantial reason for the closure and less restrictive alternatives were available.

Wednesday, March 31
A 16-year-old was named in an eight-count complaint in Cuyahoga County Juvenile Court that included aggravated robbery, grand theft, and having a weapon under disability. The aggravated robbery charges included a firearm specification. After learning about the juvenile’s role in the robbery, the juvenile court found probable cause to believe the youth committed three offenses that would be felonies if committed by an adult and no probable cause that a firearm was involved. The juvenile court bound over the case to the adult court, where the prosecution again charged the juvenile with all eight counts from the robbery, and a ninth count from another incident. In State v. Smith, the juvenile argues the state can’t charge him with crimes that the juvenile court already found there was no probable cause to believe he committed.

In State v. Jones, a father was convicted for the murder of his child’s mother’s boyfriend. After planning multiple fistfights that didn’t happen, the men scheduled another fistfight at the top of the mother’s Cincinnati street about the time the father planned to pick up his child at the mother’s house. The father went to the house and shot the boyfriend. The father called 911 and said the shooting was in self defense. The appeals court ordered a new trial on the murder and felony murder charges, but determined the aggravated murder charge couldn’t be re-tried because the state didn’t prove prior calculation and design. Seeking to re-try the father on the aggravated murder charge as well, the Hamilton County prosecutor argues the men had a contentious relationship and that the father’s actions were planned and deliberate.

In December 2016, a safe with $40,000 in cash was stolen from a Cincinnati couple’s home. A neighbor identified a vehicle parked by the home around the time of the burglary, and the couple told detectives the car belonged to their son’s friend who worked at a local barbershop. Detectives observed the barber getting in and out of the suspected vehicle over the course of eight days before arresting him. The detectives obtained a warrant to search the apartment where the barber lived and found more than $2,000 in cash along with heroin, cocaine, and other items. The man was charged and convicted of drug-related offenses. In State v. Jordan, the barber argues the search was unconstitutional because the officers had ample time, but failed, to obtain an arrest warrant before detaining him.

In re Duke Energy Ohio is a dispute over plans for a 13-mile natural gas pipeline in Cincinnati. The state board that determines environmental compatibility and public need for such projects approved the pipeline along an alternate proposed route. Blue Ash contends that the energy company offered limited information for assessing the safety risks to its densely populated areas and a busy park, and Reading maintains the company didn’t present fully developed information about the alternate route. A neighborhood organization called NOPE, which opposes the pipeline, asserts that the board considered neither the public’s need for the pipeline nor the environmental effects. Pointing to the multiple public meetings about the pipeline, the board responds that it weighed the conflicting views in its decision and that the company’s plan will meet, and even exceed, safety regulations.