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

“How is he anonymous if the person is right there in front of the police officer’s face?”

Justice Stewart, to counsel for Tidwell

On March 30, 2021, the Supreme Court of Ohio heard 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 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, had a blank expression on her face. Trooper Illanz 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. The trial court granted the motion, finding that Illanz’s interaction with Tidwell was a seizure under the Fourth Amendment.  The court 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 the First District affirmed the trial court’s judgment. Receiving information through a citizen informant or an anonymous tip can satisfy the reasonable suspicion necessary 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.

Read the oral argument preview of the case here.

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.”)

*City of Dayton v. Erickson, 76 Ohio St.3d (1996) (The probable cause determination turns on what the officer knew at the time the officer made the stop.)

*State v. Slater, 267 Kan. 694 (1999) (“[T]he mere fact that the tip includes only the conclusory statement that the suspect was drunk would not necessarily foreclose the prospect of the tip’s reliability, especially where other information contained in the tip is corroborated.”)

*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. Borum, 2014-Ohio-5639 (9^th Dist.)(“The immediacy of the report lends further credibility to the tip, as the informant’s account is not completely dependent on memory.”)

State v. Cook, 2019-Ohio-3918 (2019) (2^nd Dist.) (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.’”)

*Relied on by counsel during argument.

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.

At Oral Argument

The state shared its argument time with amicus Ohio Attorney General.

Arguing Counsel

Phillip R. Cummings, Assistant Hamilton County Prosecuting Attorney, for Appellant State of Ohio

Stephen P. Carney, Deputy Solicitor General, for Amicus Ohio Attorney General in support of Appellant State of Ohio

Tad K. Brittingham, the Law Offices of Steven R. Adams, LLC, Cincinnati, for Appellee Sherry Tidwell

State’s Argument

The stop in this case was both proper and constitutional. Both lower courts mischaracterized the case as an anonymous tip case, but it is a citizen informant case. Not only can the court correct this error, but it can also reaffirm the principle that citizen informant cases deserve special consideration. As for the jurisdictional issue, that is not before this court nor was it addressed by the court of appeals. The trial court rejected that as a basis for the motion to suppress.

Tips are categorized in one of three ways. The most unreliable is the anonymous tip, followed by the known informant tip, which is usually someone who has worked with the police before, but where corroboration is desirable if available. Finally, there is the citizen-informant tip, the most reliable type, which is what the tip was in this case. Unfortunately, the lower courts simply grabbed on to the fact that the person who gave the tip was unnamed and not identified by the trooper before leaving the scene.

The totality of the circumstances supports the finding of citizen informant in this case. It was the citizen that initiated contact with the trooper and yelled, “hey you need to stop that lady, she’s drunk and she’s about to drive.” So, at that moment the officer had the report of an ongoing crime in real time. He had an identified person and an identified vehicle—Ms. Tidwell was parked in her Hummer, in a specific location. The citizen who came forward was entitled to great reliability. In a case like this where the allegation is so serious, the need to act on this information is apparent and is encouraged by the case law. The officer was absolutely justified in taking this seriously and taking the very minimal step of walking towards this woman and looking at her to see what he could determine.

The trooper first looked at Ms. Tidwell before she noticed him. He noticed her blank stare and her glassy eyes and then he got her attention and motioned for her to stop, which she did. At that point this became an investigatory detention. Also, at that point the trooper was smelling the alcohol and noticing the exaggerated slow movement, which was corroboration of the citizen-informant’s tip that this woman was drunk. The trooper then asked Ms. Tidwell for her keys and she handed them over.  He put them on top of the car. Everything he knew justified him taking the minimal steps that he did.

Delaware v. Prouse requires balancing the intrusion with the governmental interest involved. In a case like this where a driver is about to go out and drive drunk on a public roadway there most definitely are exigent circumstances.

The state is not interested in the court creating a new rule of law. That is the beauty of the totality of the circumstances test—every case must be weighed individually.  The state is asking the court to reject Ms. Tidwell’s request for a bright-line rule in the courts below.  Just because a citizen at the scene is unnamed does not turn this into an anonymous tip situation. We don’t want officers to hesitate to stop somebody from driving while drunk just because they don’t have the name of the citizen who is standing right in front of them, and they forgot to get it. In a situation like this, the officer did exactly what the public would hope and expect the officer to do.

Amicus Ohio Attorney General’s Argument

Two uncontroversial principles—the citizen-informant rule and the snapshot rule— govern this case. Together they show that this tip was reliable, and that the trooper did the right thing when he stopped Ms. Tidwell before she drove off drunk. This court should uphold the stop and reaffirm that a citizen informant is presumptively reliable, as the citizen was here.

The citizen informant rule is that you are presumptively reliable, you don’t count as anonymous just because you don’t have time to give your name yet.  The snapshot rule is that everything is to be judged by the split second in which the officer has to decide, not by after acquired evidence.

Where the appeals court was wrong was in saying the tip should have had more detail. A conclusory statement like “she’s drunk” is the kind of thing that lay people know. We all know drunkenness when we see it and we don’t need a Rule 703 expert to opine that someone is drunk. There wasn’t time for more detail here. The trooper may have saved a life here; he may have saved Sherry Tidwell’s life. That’s why waiting for something else would not have been reasonable. Just judging by that moment in time, this case is very straightforward. This was such a minimal stop that the worst thing that happens is if the officer goes over to the car and finds the driver perfectly fine, then she goes on her way.

The most important thing in this case was the initial stop where the trooper told Ms. Tidwell not to drive off yet.  Once he started talking to her, he did notice her speech, and her glassy stare. He then asked her for the keys, which she handed over. In addition to what the officer witnessed firsthand, he also had a witness, a citizen informant. That doesn’t count as anonymous.  When a person is in a public place, it doesn’t count as anonymous just because that person hasn’t shown an ID yet. People get pulled over and asked to do drunk tests all the time.  If they are not drunk, then they don’t have a problem. There are stops that turn out with nothing wrong. There are times when there are missed or mistaken calls. The question is do we want to err on the side of safety or do we want to risk life or death.  And here we err on the side of safety, to nip this in the bud. There are other tools if rules get abused. But here it turned out right.

One of the things the appeals court found was that the tip did not contain any predictive information. When a person says stop that car, that lady’s drunk, the prediction is implicit. If she gets into that car, she’s going to drive drunk, and someone is going to get hurt. You don’t have to say it in so many words. You can just say stop, drunk, and that’s the bottom line here.

Tidwell’s Argument

Merely having a line of sight with a police officer does not transform an otherwise anonymous individual into a citizen informant. If the tipster here is not anonymous then there is no anonymous. OVI prevention is a laudatory goal. But to find in favor of the state, this court would have to find that OVI prevention is so important that reasonable suspicion is no longer required to stop a motorist. The state is essentially asking to the court to carve out an OVI exception to Terry’s reasonable suspicion requirement.

In addition to a lack of reasonable suspicion, what we have in this case is hearsay upon hearsay. We have the clerk at Speedway relaying information to the individual and then that individual relaying that information to the trooper. In this situation, the trooper could have asked for a name, and asked the unidentified individual to stick around. That would have taken no time at all.  And there is no evidence that this person actually observed or witnessed anything. The individual was merely told by the Speedway clerk to tell the trooper this information.

Ms. Tidwell was unarguably detained when the trooper asked her for her keys, and she turned them over to him.  It is also important to note that we have a state patrol officer acting on entirely private property.  Under R.C. 5503.02 the trooper doesn’t even have jurisdiction to stop someone on private property, an issue Ms. Tidwell argued below.

The proper framing of the issue here is Ms. Tidwell’s constitutional right to be free from unreasonable search and seizure versus the state’s interest in having a trooper stop someone without statutory jurisdiction to do so based upon an anonymous tip.  Terry requires reasonable suspicion based on articulable facts before a stop can pass constitutional muster. There was no specificity here, nor any articulable facts– only secondhand opinion. The state frames Terry as affording protections to the public. That’s an incorrect and misleading interpretation of the holding in that case.  Terry protects individuals from stops and searches without reasonable suspicion. That twisting of Terry is required to find in the state’s favor here.

What Was On Their Minds

The Trooper’s Actions

Did the trooper reach in and take Ms. Tidwell’s keys out of the ignition once she rolled down her window and stopped backing out, asked Justice Brunner? At what point did he ask for her keys? Had he smelled alcohol or was it just the blank stare and the backing slowly when he asked for the keys?  This is a case that is so specific on the facts, she noted, adding that if the court turns this into a rule, then what about the person who is wrongfully detained in the future based on what amounts to an unidentified person who got the information from somebody else and then called out to the police officer who then went ahead and detained the person just based on that? She added that it’s ok to stop and have a consensual encounter which is what it could have been at first, but once the trooper took her keys, Ms. Tidwell was detained.

Was the vehicle in motion when the trooper stopped Ms. Tidwell, asked Justice Stewart? Would it have been unreasonable for the trooper to follow her to see if her driving was erratic? Do we know if the officer was finished with the business that he was originally there for? Was he between both scenarios?

The Tip

Wasn’t the testimony that the clerk in the store was alerted to the customer’s intoxication, sold her alcohol anyway, and then immediately told this other customer -hey, this woman’s drunk, asked Chief Justice O’Connor? Wasn’t it on two observations, not just the citizen informant? Wasn’t it exigent circumstances?

The facts of this case caused me to think about hearsay exceptions, noted Justice Donnelly. The reason we allow hearsay exceptions is they contain certain indicia of truthfulness like an excited utterance. How does this situation not differ from that?

Isn’t there a lot more risk in lying to a police officer when you are face to face with that police officer than the individual in the typical anonymous case which is just a phone call, asked Justice DeWine? Is saying something to a police officer’s face enough to create reasonable suspicion? What if this officer had done nothing, and just ignored the tip, and the person pulls out into traffic and kills someone?  Wouldn’t there then be a lawsuit against the police saying the police officer was reckless for ignoring the tip that someone who was drunk was about to pull onto the highway?

The Tipster

How is the tipster anonymous if the person is right there in front of the police officer’s face, asked Justice Stewart? Why is it the police officer’s fault that the citizen informant left the scene? What if the officer had asked the citizen to stick around, but that person did not? Don’t we want to encourage citizens, particularly in matters involving safety, to notify law enforcement? Don’t we want to discourage people standing idly by and not reporting something suspicious?

An anonymous tipster calling in may have all sorts of nefarious reasons for doing so but in our common experience, isn’t it true that people don’t usually come out and make an accusation in person that is false, asked Justice Donnelly?  

If the informant is asked to stick around, but leaves, that wouldn’t in any way impact what was said to the trooper, or his observations flowing from that, would it, asked Chief Justice O’Connor?

Reasonableness Standard

We are told over and over again that the touchstone of the Fourth Amendment is reasonableness, commented Justice DeWine. Would it have been reasonable for a police officer who has just been told that somebody who is intoxicated is getting ready to drive a Hummer into busy traffic to just let that person go? Would a reasonable police officer allow that person to pull out into traffic in that situation?

Jurisdiction

Is the defense saying a state trooper cannot react to a crime that’s being committed because it’s on private property and not a highway, asked Chief Justice O’Connor? Didn’t the sheriff follow up on this?

Is the defense saying any arrest in a public parking lot owned by a business is illegal, asked Justice DeWine? Was that argued below?

How it Looks from the Bleachers

To Professor Emerita Bettman

Like a win for the state. The Chief and Justices DeWine, Donnelly, and Stewart definitely seemed inclined to find this a citizen informant case rather than an anonymous tip, given the in-person contact with the trooper and lack of any motive to lie under these circumstances. They seemed to accept the argument that the average citizen knows a drunk when he or she sees one. They also seemed completely unconcerned with Tidwell’s jurisdictional argument about the trooper’s lack of authority off the highway. Justice Brunner seemed less persuaded by the state’s argument. Justices Kennedy and Fischer asked no questions during an otherwise very lively argument. 

To Student Contributor Maggie Pollitt

I expect the State to win this case. Chief Justice O’Connor and Justices DeWine, Donnelly, and Stewart favored the State’s argument that the unnamed citizen was a citizen informant and not an anonymous tipster. The justices didn’t like the argument from Tidwell’s counsel that the officer should have asked the tipster to provide identification or stick around for additional questions The justices seemed to think that was an unnecessary burden to place on police officers while trying to act on the tip.

Interestingly, the justices didn’t seem concerned with the potential for increasing unreasonable stops under Terry. The justices were far more concerned with officers allowing dangerous drunk drivers on the road while carefully evaluating the veracity of a tip. The justices also seemed to lean into the premise that the reasonable suspicion standard was satisfied by the unnamed citizen’s statement of: “Hey, you need to stop that vehicle. That lady is drunk.” The Deputy Solicitor offered an interesting argument that the unnamed citizen’s use of the word “drunk” both described Tidwell’s state and the prediction that Tidwell could be a dangerous driver. Ultimately, the justices’ questions were pointed and telling, making me think that a win for the State is most likely.