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Woman charged with OVI with kids in vehicle wins appeal
ANNIE YAMSON
Special to the Legal News
Published: June 9, 2014
The judgment of the Bowling Green Municipal Court was reversed recently when the 6th District Court of Appeals found that the lower court improperly denied a defendant’s motion to suppress evidence gathered from a warrantless seizure.
The defendant, Christine Whitacker, was charged with OVI, child restraint violations and child endangering.
She entered not guilty pleas but when the trial court denied her motion to suppress evidence from the traffic stop that led to her arrest, she changed her pleas to no contest.
The trial court sentenced Whitacker to 33 days in jail with 30 days suspended for the OVI and 180 days in jail with 160 suspended for endangering children along with one year of probation. The remaining charges were dismissed.
“Because we find that the trial court erred when it denied appellant’s motion to suppress, we reverse,” wrote Judge Mark Pietrykowski on behalf of the court of appeals’ three-judge appellate panel.
Case summary states that Bowling Green Police Officer Jason Broshious was on duty in a marked police cruiser on July 3, 2013 when he received a call from dispatch that an anonymous informant had called the police department and said there were intoxicated females with children in a red vehicle behind Checker’s Bar in Bowling Green.
At a hearing on the motion to suppress, Broshious testified he approached the bar’s back parking lot from an alley and observed two vehicles in the lot.
One of the cars was red and driving in the lot, approaching the alley.
Broshious told the trial court that there were two women and some children in the vehicle.
He also testified he stopped parallel to Whitacker’s vehicle and was followed by two more cruisers, none of which had their lights or sirens activated or were blocking Whitacker’s exit from the lot.
On cross-examination, Broshious stated, “It was an investigative stop,” but he and the other officers maintained that Whitacker stopped of her own accord and none of the cruisers were blocking her exit.
Whitacker, however, testified that the officers “boxed” her vehicle in with two cruisers on the driver’s side of her vehicle and one in the front, making it impossible for her to move.
When he approached the vehicle, Broshious stated that there was a strong smell of alcohol emanating from inside. Whitacker admitted that she had been at a funeral and had been drinking.
After reviewing dash cam videos, the trial court determined that the stop was consensual and “more of a caretaking contact.”
It proceeded to deny Whitacker’s motion to suppress, but the court of appeals disagreed with that interpretation of events.
“Whether an encounter is an investigatory stop or consensual encounter turns on whether a reasonable, innocent person would feel free to leave or end the encounter with police,” wrote Judge Pietrykowski. “Upon review, we find that the encounter was an investigatory stop rather than a consensual encounter.”
The appellate panel’s analysis, unlike the trial court’s, did not hinge on whether or not the police cruisers blocked Whitacker’s exit from the parking lot.
“We are more troubled by the fact that (Whitacker’s) vehicle was moving when it was approached by multiple police cruisers,” wrote Judge Pietrykowski. “We find that a reasonable, innocent person would not feel free to leave when her vehicle is surrounded by police. Thus, this was not a consensual police encounter.”
Because the officers’ approach did constitute an investigatory stop, the appellate panel held that it required a reasonable suspicion of prohibited activity.
“The anonymous telephone call which prompted police response, while specific in its description of the vehicle, passengers and location failed to provide a reasonable basis to suspect criminal activity,” wrote Judge Pietrykowski.
The informant only provided information that aided the police in locating the vehicle, the appellate panel held, but not enough to justify an investigative stop.
Consequently, the judgment of the Bowling Green court was reversed and the matter was remanded for proceedings consistent with the higher court’s opinion.
Judges Arlene Singer and James Jenson concurred.
The case is cited State v. Whitacker, 2014-Ohio-2220.
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