Update: On September 30, 2021, Tidwell was found guilty of one count of OVI.

“Based on the totality of the circumstances then confronting the officer, we hold that his investigatory stop of Tidwell was reasonable and thus did not violate the Fourth Amendment to the United States Constitution.”

Justice Donnelly, opinion of the Court

On June 24, 2021 the Court handed down a merit decision in State v. Tidwell, 2021-Ohio-2072. In a unanimous opinion written by Justice Donnelly, the Court upheld an investigatory stop of Sherry Tidwell that was based on the assertion of an unidentified witness that Tidwell was operating her vehicle while intoxicated. The case was argued March 30, 2021.

Case Background

In the evening of November 11, 2017, State Highway Patrol Sergeant Jacques Illanz was investigating a collision on Fields-Ertel Road, a heavily traveled road in Warren County. He had directed the drivers of the two vehicles involved into a nearby Speedway parking lot to complete an accident report. While Illanz was completing his report, a man standing in the doorway of the Speedway store yelled to Illanz, “Hey you need to stop that vehicle. That lady is drunk.” The man was pointing to an SUV backing out of a parking space. Illanz never got the name of this man, and later learned only that he was a Speedway customer.

Illanz then turned his attention to the SUV and saw the driver back out very slowly toward Fields-Ertel Road. He observed a blank stare which he knew from his training could suggest impairment. Illanz then walked in front of the vehicle and motioned for the driver, Sherry Tidwell, to stop, which she did. He then asked Tidwell to roll down the window, turn off the car, and give him the keys, all of which she did. Illanz later testified that he had detected a strong odor of alcohol emanating from the SUV, that Tidwell’s eyes were bloodshot and glassy, and that her speech was slow and slurred. He also testified that when he asked Tidwell for her driver’s license it took her several minutes to comply. While Tidwell told Illanz that she had purchased alcohol at the Speedway and was on her way home, she denied having had anything to drink.

At this point, a deputy sheriff who had jurisdiction over the private Speedway premises arrived and administered field sobriety tests to Tidwell, which Tidwell flunked. While the tests were being performed, Illanz spoke with the clerk in the Speedway store and learned that the clerk was the person who had told the unidentified customer to let law enforcement know of Tidwell’s possible intoxication. Meanwhile, the unidentified customer was long gone from the scene.

Tidwell was arrested and charged with operating a vehicle under the influence of drugs or alcohol. She filed a motion to suppress the evidence from the stop, which was granted by the trial court judge who found the anonymous tip unreliable.  The First District Court of Appeals affirmed.

Read the oral argument preview of the case here and an analysis of the case here.

Key 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) (Consistent with the Fourth Amendment, a police officer who has reasonable suspicion to believe a person is or is about to be engaged in criminal activity, may conduct a brief investigatory stop, including a traffic stop, without probable cause to arrest.)

Adams v. Williams, 407 U.S. 143 (1972) (The Supreme Court “firmly rejected the argument ‘that reasonable cause for a[n investigative stop] can only be based on the officer’s personal observation, rather than on information supplied by another person,’” and held a tip from a known informant was more reliable than a tip from an anonymous informant, and that there was sufficient indicia of reliability in this case, because the information was “immediately verifiable at the scene” and because the informant could have been subject to immediate arrest if he had knowingly made a false report.)

United States v. Cortez, 449 U.S. 411 (1981) (When evaluating reasonable suspicion for an investigatory stop, and considering the totality of the circumstances, police officers may “draw on their own experience and specialized training to make inferences from and deductions about the cumulative information available to them that ‘might well elude an untrained person.’”)

United States v. Sharpe, 470 U.S. 675 (1985) (The Supreme Court declined to adopt a set time limit for a permissible Terry stop and instead instructed that it was “appropriate to examine whether the police diligently pursued a means of investigation that was likely to confirm or dispel their suspicions quickly, during which time it was necessary to detain the defendant.”)

Alabama v. White, 496 U.S. 325 (1990) (The Supreme Court stated that “if a tip has a relatively low degree of reliability, more information will be required to establish the requisite quantum of suspicion than would be required if the tip were more reliable,” and concluded an anonymous tip that accurately predicted future behavior implied the tipster “had access to reliable information,” and held the tip combined with the fruition of the behavior was sufficiently reliable to justify the investigative stop.)

Maumee v. Weisner, 87 Ohio St.3d 295 (1999) (“Courts have generally 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,” and determined a strong showing of other indicia of reliability may be unnecessary when the tip came from a known informant, in comparison to an anonymous informant, however, the category of informant is not necessarily outcome determinative but instead an element to be viewed in the totality of circumstances.)

Florida v. J.L., 529 U.S. 266 (2000) (Without an added showing of a special familiarity with the suspect, such as predictive information as in White, an anonymous tip accurately describing a person’s “observable location and appearance” on its own, lacked the necessary indicia of reliability in its assertion of illegality to support an investigative stop.)

Navarette v. California, 572 U.S. 393 (2014) (A tip from an anonymous 9-1-1 call was sufficiently reliable for an investigative stop when the tip was made contemporaneously with the incident, the tipster could have later been identified through the recorded and traceable 9-1-1 call, and because the possibility of identification minimized the likelihood of a false reporting.)

State v. Cook, 2019-Ohio-3918 (2d Dist.) (Upholding the legality of investigative traffic stop made based on information provided by an unidentified citizen informant when the informant initiated face-to-face, open, and public contact with an officer: “[T]the categories * * * are not always neat and tidy. But the categories are simply a tool used to assist in the ultimate determination of the informant’s reliability.”)

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.

Does the Court Adopt the State’s Proposition of Law?

The Court found the informant in this case did not fit neatly into either category but was closer to the citizen informant than to an anonymous tipster, and that the tip was sufficiently reliable to withstand a Fourth Amendment challenge.

Merit Decision

Analysis

Investigatory Stops

It should by now be axiomatic that an officer needs reasonable suspicion that criminal activity is afoot in order to have grounds for an investigatory stop. Here, the first information available to Sergeant Illanz was the shout out from the Speedway customer, “Hey, you need to stop that vehicle.  That lady is drunk.” The parties disagree on the extent to which that statement could provide justification for the stop.

It is settled law that reasonable suspicion need not be based only on an officer’s personal observation. Tips can come from informants, but one rule doesn’t cover every situation. A tip from a known informant is more reliable than an anonymous telephone tip. Corroboration or verification of specific details and predictive information enhance the reliability of an anonymous tip, as do tips that are equivalent to excited utterances.  

The Categories of Informants

Many courts including the Supreme Court of Ohio have used three categories of informants: 1) the anonymous informant, 2) the known informant from the criminal world who has provided reliable tips in the past, and 3) the identified citizen informant. The anonymous informant is the least reliable and would require independent police corroboration of reliability. The identified citizen informant is often highly reliable with no other indicia of reliability necessary. But the court emphasizes that the categorization of the informant is not solely outcome determinative, but is just one element in the totality of the circumstances. 

The Speedway Customer

In this case the parties disagree as to the category in which to place the speedway customer who shouted out to Sergeant Illanz. The state argues that the face-to-face contact the customer had with Illanz was enough to remove the customer from the category of “anonymous informant” and into the category of citizen informant. But despite the state’s argument, the court notes that the customer’s identity remains unknown, leaving Sergeant Illanz with no knowledge of the man’s veracity, reliability, or basis of knowledge, nor did Illanz know if the customer’s remarks were based on personal knowledge or if he was just passing on the information of the store clerk. Tidwell, on the other hand, argues the customer falls into the category of anonymous informant, and thus his tip lacked the necessary indicia of reasonable suspicion to establish the stop.

The court concluded the Speedway customer was not a perfect fit in either category. He was more closely aligned with an identified citizen informant because he initiated face-to-face communication with Illanz. But he also resembled an anonymous informant in that his identity was unknown.

“Rather than attempt to force the Speedway customer into one of the categories, we determine the reasonableness of this investigatory stop by considering the totality of the circumstances as they were known to Sergeant Illanz prior to the time he stopped Tidwell, together with reasonable inferences that could be drawn from the circumstances, keeping in mind that each piece of information may vary greatly in its value and degree of reliability,” Donnelly wrote for the court.

The Totality of the Circumstances

Before Sergeant Ilanz stopped Tidwell’s vehicle, the information he had was what he was told and what he himself observed. This combination was good enough to find the investigatory stop was reasonable. First, the court found it significant that it was the Speedway customer who initiated the contact with Illanz, with no attempt to hide his identity. The court found his unidentified status did not necessarily eliminate any indicia of reliability, because he could not know whether his identity might be discovered later. Additionally, his tip was about a crime in progress, not about a past crime. This contemporaneous report provided further indicia of reliability. 

The court also found that Sergeant Illanz’s personal observations lent credence to the customer’s report. Illanz observed a blank stare on Tidwell’s face, and observed her driving at an usually slow speed, both consistent with impairment based on Illanz’s police-officer training and experience.   

“Given the information then available to Sergeant Illanz, it was reasonable under the totality of the circumstances for him to approach the vehicle in this public area and briefly detain its driver in order to make a most basic inquiry as to whether an immediate danger to public safety existed,” Donnelly wrote.

Donnelly went on to add that “Sergeant Illanz’s brief encounter with Tidwell immediately enabled him to confirm that Tidwell was operating a motor vehicle while intoxicated based on what he personally smelled, saw, and heard. The customer’s face-to-face contemporaneous report of alleged criminal activity occurring right before Sergeant Illanz’s eyes justified the investigatory response Sergeant Illanz took in this case.”

The Court again reiterated that the degree of reliability of the unidentified customer’s tip cannot be quantified to a mathematical certainty, but this does not mean it lacks investigative value.

Bottom Line

Sergeant Illanz had reasonable suspicion to investigate whether Tidwell was driving drunk based on the unidentified customer’s tip and his own partial corroboration of the tip. The investigatory stop did not violate the Fourth Amendment. (The Court also noted in a footnote that no real state constitutional law argument was developed under Article I, Section 14 of the Ohio Constitution).

Case Disposition

The case is reversed and remanded

Trial Court Judge (reversed)

Hamilton County Municipal Court Judge Dwayne Mallory

First District Court of Appeals Panel (reversed)

Opinion authored by Judge Marilyn Zayas and joined by Judges Candace Crouse and Robert Winkler

Concluding Observations

Both student contributor Maggie Pollitt and I correctly called this for the state. After the argument, I wrote,

“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.” 

Maggie wrote “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.’”