Update: On June 24, 2021 the Supreme Court of Ohio handed down a merit decision in this case. Read the analysis here.

Read an analysis of the argument here.

On March 30, 2021, the Supreme Court of Ohio will hear oral argument in State of Ohio v. Sherry Tidwell, 2020-0290. At issue in this case is whether in-person contact between an unnamed citizen and a police officer is sufficient to classify the person as a citizen informant rather than an anonymous tipster for purposes of an investigatory Terry stop.

Case Background

On November 11, 2017, Ohio State Trooper Sergeant Jacques Illanz (“Illanz”) was in a Speedway gas station parking lot investigating a traffic accident. While in his police vehicle, a Speedway customer called out to Illanz from the door of the gas station, motioned to another vehicle in the parking lot, and said “Hey, you need to stop that vehicle. That lady is drunk.” The customer left the scene. The officer did not get the customer’s name or contact information. Later, the officer discovered that the customer called to the officer at the direction of the store clerk.

Illanz testified that he saw the vehicle slowly back out of the parking space, and he noticed that the driver of the vehicle, Sherry Tidwell (“Tidwell”), had a blank expression on her face. The officer walked in front of the vehicle and motioned for her to stop. Tidwell complied. Upon talking with Tidwell, Illanz noticed that Tidwell appeared drunk: her speech was slurred, her movements slow, and her eyes bloodshot and glassy. Another officer took over for Illanz, performed field sobriety tests on Tidwell, concluded Tidwell was under the influence of drugs or alcohol, and arrested her.  Later testing showed Tidwell had a blood-alcohol concentration of 0.213. Tidwell was charged with operating a vehicle while under the influence (“OVI”) in violation of R.C. 4511.19(A)(1)(a) and R.C. 4511.19(A)(1)(h).

Tidwell filed a motion to suppress evidence gathered from the stop. Hamilton County Municipal Court Judge Dwane Mallory granted the motion, finding that Illanz’s interaction with Tidwell was a seizure under the Fourth Amendment.  Judge Mallory found that the customer’s interaction with the officer was based on an anonymous tip and was thus unreliable. To comply with Fourth Amendment protections, Illanz was required to corroborate the anonymous tip independently before interacting with Tidwell. Because Tidwell was not driving erratically, the officer’s investigatory stop was unjustified.

The State appealed the trial court’s ruling, arguing that Illanz’s initial interaction with Tidwell was consensual, not investigatory, and that the customer was not an anonymous tipster but a citizen informant.

The Appeal  

In a unanimous decision written by Judge Marilyn Zayas and joined by Judges Candace Crouse and Robert Winkler, the First District affirmed the trial court’s ruling. The appellate court found that Illanz’s interaction with Tidwell was nonconsensual because Illanz stood in front of Tidwell’s car, thus restraining her liberty to terminate the encounter. To make a constitutional Terry stop, an officer must have a reasonable, articulable suspicion of criminal activity. Receiving information through a citizen informant or an anonymous tip can satisfy reasonable suspicion to justify a Terry stop. While citizen informants are presumed reliable, an anonymous tip must be independently corroborated by an officer to establish sufficient reliability to satisfy reasonable suspicion. In this case, the appellate court found that the customer was an anonymous tipster for several reasons. First, the customer was – and is still – unknown. Additionally, the tip did not provide any predictive information about Tidwell. The tipster did not provide any other information to prove his or her credibility, such as how the tipster knew that Tidwell was intoxicated. The appellate court found that, apart from the undetailed tip, there was no reason to suspect Tidwell of criminal conduct.

The appellate court found that Tidwell’s conduct prior to being stopped did not indicate that she was driving under the influence. Tidwell’s choice to pull out of a parking space slowly does not constitute erratic driving. Therefore, Illanz did not corroborate the anonymous tip prior to conducting a Terry stop. Under the totality of the circumstances, the anonymous tip combined with Illanz’s personal observations were not sufficient to constitute the reasonable suspicion necessary for a Terry stop.

Votes to Accept the Case

Yes: Justices Fischer DeWine, Donnelly, and Stewart

No: Chief Justice O’Connor, Justices Kennedy, and French

State’s Proposition of Law Accepted for Review

Simple face-to-face contact between an unnamed citizen and a police officer may be enough to remove the citizen from the category of “anonymous” and consider him a “citizen informant,” whose tip merits a high degree of credibility and value, rendering the tip sufficient to withstand a Fourth Amendment challenge without independent police corroboration.

Key Statutes and Precedent

U.S. Const. Amend. IV (“The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”)

Terry v. Ohio, 392 U.S. 1 (1968) (“It must be recognized that whenever a police officer accosts an individual and restrains his freedom to walk away, he has “seized” that person.”)

State v. Jones, 70 Ohio App.3d 554 (2d Dist. 1990) (“Reasonable suspicion entails some minimal level of objective justification for making a stop — 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. Gedeon, 81 Ohio App.3d 617 (11th Dist. 1992) (“The investigative stop exception to the Fourth Amendment warrant requirement allows a police officer to stop an individual if the officer has a reasonable suspicion, based upon specific and articulable facts, that criminal behavior has occurred or is imminent.”)

Maumee v. Weisner, 87 Ohio St.3d 295 (1999) (“The court has further suggested that an identified citizen informant may be highly reliable and, therefore, a strong showing as to the other indicia of reliability may be unnecessary.”)

Florida v. J.L., 529 U.S. 266 (2000) (The Supreme Court declined to create a “firearm exception” to the Terry safeguards: “Such an exception would enable any person seeking to harass another to set in motion an intrusive, embarrassing police search of the targeted person simply by placing an anonymous call falsely reporting the target’s unlawful carriage of a gun.”)

McKelvin v. State, 53 So. 3d 401 (2011) (“The indicia of reliability typically attributed to face-to-face encounters between police officers and informants do not exist in the present case where the police have no contact information for the informant and no way to locate him/her otherwise.”)

State v. Cook, 2019-Ohio-3918 (2019) (Informants who make open contact with an officer act consistently with citizens who, out of civic duty, report criminal conduct they have witnessed.)

State v. Davidson, 2019-Ohio- 5320 (10th Dist.) (“Courts have, in general, ‘identified three classes of informants: the anonymous informant, the known informant (someone from the criminal world who has provided previous reliable tips), and the identified citizen informant.’”)

State’s Argument

The appellate court incorrectly categorized the Speedway customer as an anonymous tipster when he was actually a citizen informant.  Generally, to reach the level of reasonable suspicion required for a valid Terry stop, officers must independently corroborate information received from anonymous tipsters. Anonymous tips are not generally inherently reliable, while information received from a citizen informant is considered presumptively reliable and does not need to be supported by independent observations of an officer. Average citizens who personally observe criminal conduct are presumed to be credible, especially if their account is eyewitness and in real-time. Citizen informants do not have to give their name or contact information to be considered a citizen informant. Whether an informant is anonymous depends on whether the informant took steps to maintain anonymity. Finally, courts must analyze this information based on the totality of the circumstances, including the basis of the informant’s knowledge.

Here, the customer who called out to Illanz was not an anonymous tipster, but a citizen informant. The citizen was face-to-face with the officer. He did not act to conceal his identity or hide his features. The fact that Illanz did not have the opportunity to ask him his name and contact information is not dispositive in this case. Rather, the customer’s contact with the police was open and consistent with a person acting out of civic duty in real-time to stop a crime from happening. The customer’s information to Illanz required immediate action: Tidwell was pulling out of her parking spot intoxicated and Illanz needed to stop her before she drove impaired on a busy road. The customer was an eyewitness to criminal activity and was acting out of civic interest in calling Illanz’s attention to Tidwell’s car. Given this information, the customer did not intend to remain anonymous but was a citizen informant. Because he was a citizen informant, the information he gave to Illanz was not subject to additional corroboration to reach the level of reasonable suspicion. Even more, Illanz personally observed Tidwell’s blank stare and slow-moving car prior to conducting the investigative stop. This information, coupled with the citizen informant information, constitutes reasonable suspicion. Based on the totality of the circumstances, Illanz was justified in conducting a Terry stop.

Officers must be able to respond to tips that could save the public from danger immediately and citizen informants should be able to follow the Department of Homeland Security’s advice: “If you see something, say something.” The court of appeals failed to apply the requisite totality of the circumstances test and should be reversed.

Tidwell’s Argument

The propriety of a Terry stop must be based on the totality of the circumstances. To satisfy the constitutional requirements of a Terry stop, the officer must have reasonable, articulable suspicion of criminal activity. In this case, the only information that Illanz used in conducting a Terry stop of Tidwell was: (1) an unknown customer told him that Tidwell was drunk; (2) Tidwell had a “blank stare” on her face; and (3) Tidwell pulled out of her parking space slowly.

The Speedway customer was an anonymous tipster that is not afforded the degree of reliability of a citizen informant. Information received from an anonymous tipster must be independently corroborated with enough evidence to justify the Terry stop. Here, the customer did not give any context or predictive information to corroborate his claims that Tidwell was drunk. The customer did not say that he saw Tidwell falling down drunk or that she was consuming alcohol in the Speedway. The customer also did not personally observe Tidwell, or at least, there is no evidence that the customer personally observed Tidwell. Rather, the store clerk told the customer to tell Illanz about Tidwell’s state, and the tipster did exactly that and nothing more.  That amounts to something close to double hearsay. Illanz himself merely observed a “blank stare” and slow driving which is insufficient to rise to the reasonable suspicion required for this stop.

Here, the Speedway customer was not subject to any accountability in giving Illanz the tip about Tidwell and should not be held out as inherently reliable. The Speedway customer was merely passing on information from the store clerk to an officer. He was not consciously trying to engage in civic duty, as is evidenced by the fact that he immediately left the scene and left no trace to be found.  The State intentionally mischaracterizes the interaction between Illanz and the Speedway customer as “face to face” when in fact, they were two people standing in a crowded parking lot. The customer was at the door of the Speedway while Illanz was in his police vehicle. In fact, at first, Illanz did not realize that the customer was a customer and not an employee. Additionally, Illanz did not take any initiative to ask the anonymous customer to stick around.

The State essentially argues that an in-person tip can never be anonymous, but this is not true. In other cases, where police officers do not have the tipster’s contact information or any way to locate the tipster, the typical indicia or reliability attributed to face-to-face encounters does not exist.

Information from anonymous tips must be independently corroborated by the officer to create the reasonable suspicion required for a Terry stop. Tidwell was not driving erratically. In fact, slowly pulling out of a parking space in a crowded lot is not erratic driving at all – it’s safer than pulling out of a parking spot quickly. Having a blank stare on one’s face is not evidence of intoxication, otherwise many bored individuals would be presumptively intoxicated.

An anonymous tip and perceived safe driving are not sufficient to constitute the reasonable suspicion required of a Terry stop. Given the totality of the circumstances, Illanz’s choice to conduct a Terry stop based on the anonymous tip from the unknown Speedway customer was unconstitutional.

Tidwell’s Response to State’s Proposition of Law

The stop of Ms. Tidwell was a seizure, predicated on an anonymous tip with almost no corroboration. The seizure violated the Fourth Amendment and/or Article I Section 14 of the Ohio Constitution and both the trial court and the First District decided the case correctly.

Amicus in Support of State

Ohio Attorney General Dave Yost

The Ohio Attorney General (“OAG”) is Ohio’s chief law enforcement officer and has an interest in protecting Ohio citizens from traffic accidents, including alcohol-related car accidents. The OAG also has an interest in giving clear guidance to all police officers.

The Court should reverse the First District’s decision because, under the totality of the circumstances, Illanz had reasonable suspicion to stop Tidwell. Tips made during in-person encounters are more likely to be reliable. The customer here made the report on the scene of where Tidwell was visibly intoxicated. The customer also could have been held liable for any false statement. This renders the customer’s statement inherently credible. The dangers of drunk driving justify the investigative stop.

OAG’s Proposed Proposition of Law

A police officer has reasonable and articulable suspicion to stop a car from driving off when a citizen urgently warns the officer, in person, that the driver is drunk.

Amicus in Support of Sherry Tidwell

Office of the Ohio Public Defender

The Office of the Ohio Public Defender (“OPD”) is a state agency designed to represent indigent criminal defendants and to coordinate criminal-defense efforts throughout Ohio.

The OPD argues that the initial interaction between Illanz and Tidwell was not consensual but was an investigative Terry stop. Thus, for Illanz to pull Tidwell over, Illanz needed reasonable suspicion. The Speedway customer shouting at Illanz from across the parking lot is not a citizen informant but an anonymous tipster that should have been corroborated. The customer was more akin to a courier, delivering the message from someone else. Illanz failed to corroborate the anonymous tip prior to pulling Tidwell over and thus did not meet the reasonable suspicion requirement for a Terry stop. The Court should focus not on the content of the tip but on the method of delivery in determining whether it was anonymous. The Court should affirm the decision of the First District and remain true to constitutional jurisprudence.

Student Contributor: Maggie Pollitt