Can a police officer stop the driver of an automobile who is reportedly armed and contemplating suicide?
In a 6-1 decision (Pfieffer, J, dissenting), the Ohio Supreme Court answered yes, that a police officer may perform a warrantless stop of a motorist when objectively reasonable grounds lead the officer to believe that there is an immediate need for his or her assistance to protect life or prevent serious injury. The case, State v. Dunn (2012), 131 Ohio St. 3d 325, involved a police dispatch that described a suicidal male operating a tow truck and that he was planning to kill himself when he arrived at a certain address on Helke Road in Vandalia. The dispatcher gave the driver’s name (Richard Dunn) and indicated that he had a weapon. The dispatcher also provided a general description of the tow truck and the company’s name (Sandy’s). Shortly after receiving the radio broadcast, a Vandalia police officer spotted the tow truck about two miles from the address. The officer followed the driver until another back-up unit arrived, and together the two police officers executed a traffic stop. The driver emerged from the truck with his hands up. He was crying. The officers took Mr. Dunn into custody and placed him in the cruiser. While the office was walking him to the cruiser, Dunn told him, “it’s in the glove box.” The officer asked him if he was referring to a gun, and Dunn said yes. The officer then searched the glove box and found the gun.
Dunn was later indicted for one count of improperly handling a firearm in a motor vehicle. He filed a motion to suppress the gun, claiming that the stop violated his constitutional rights against illegal seizures. The trial court conducted a hearing on the motion and ruled that the stop was a legitimate response to an emergency situation and overruled the motion. Dunn appealed to the Montgomery County Court of Appeals. The appellate court reversed. The appellate judges held that the state failed to show that the dispatcher had a reasonable basis for sending out the dispatch that caused the officers to stop Dunn’s truck.
The Ohio Supreme Court reversed the court of appeals. The Court explained that the community caretaking or emergency aid exception to the Fourth Amendment warrant requirement allows police officers to stop a driver based on a dispatch that the driver is armed and intends to commit suicide. The Court rejected the appellate court’s analysis that the dispatcher’s information was not based on sufficient facts to support its reliability. The reliability of the information from a police dispatcher, the Court noted, is only relevant to an investigative Terry stop. The proper analysis, according to the Court, is whether the officer acted reasonably in believing that emergency aid was necessary to protect life or limb and therefore acted in accordance with that belief. The Court reviewed several prior United States Supreme Court and federal appellate court cases that applied the emergency aid exception. “The need to protect or preserve life or avoid serious injury is justification for what would be otherwise illegal absent an exigency or emergency.” Dunn, at 329, citing Wayne v. United States (D.C. Cir. 1963), 318 F. 2d 205, 212. The Court also ruled that Dunn’s spontaneous statement that the gun’s in the glove box was not the result of custodial interrogation and therefore Miranda warnings did not apply.
In probably the most important Ohio Supreme Court decision pertaining to sex offenders, the state’s highest court announced on July 13, 2011 that Senate Bill 10, effective January 1, 2008, is unconstitutional as applied to offenders who committed their offenses prior to the effective date. The Supreme Court of Ohio held that application of the law to offenders who committed their offenses prior to its enactment violates the Ohio Constitution’s prohibition against the passing of retroactive laws.
In State v. Williams (2011), 129 Ohio St. 3d 344, ¶22, Justice Pfeifer, writing for the majority, opined: “We conclude that S.B. 10, as applied to Williams and any other sex offender who committed an offense prior to the enactment of S.B. 10, violates Section 28, Article II of the Ohio Constitution, which prohibits the General Assembly from enacting retroactive laws.” The Court determined that S.B. 10 is punitive and imposes “new and additional burdens, duties, obligations or liabilities as to a past transaction.” Id. at ¶9.
Subsequent to its decision in Williams, the Ohio Supreme Court applied its holding to juvenile sex offenders whose offenses occurred prior to the enactment of S.B. 10. In re D.J.S. (2011),130 Ohio St. 3d 257.
This type of law is commonly referred to as an “ex post facto” law, which means, “after the fact.” The United States Constitution also contains prohibitions against the enactment of ex post facto laws. The Court’s ruling has tremendous implications for sex offenders.
The most important effect is that any sex offender, adult or juvenile, who was sentenced under the registration provisions of S.B. 10 and whose offense occurred prior to the effective date has an immediate remedy in the court of his/her conviction or disposition. That remedy is a motion for re-sentencing or a motion for new disposition hearing.
The Supreme Court’s ruling means that the law is a null and void as applied retroactively. Any offender who is currently reporting under the provisions of S.B. 10 for an offense committed prior to the effective date should seek redress in the court of conviction or juvenile disposition.[1] The offender should be re-sentenced under the registration provisions that were in effect at the time he/she committed the sex offense. The offender may want to consult with an attorney about filing the motion for re-sentencing.
[1] This procedure is unnecessary if the offender has already been notified by the court of conviction/disposition that he is being re-sentenced and will be notified of a new sentencing/hearing date.
DRAM SHOP/LIQUOR LIABILITY—OHIO LAW
If you have been seriously injured by a drunk driver, you may have a cause of action for damages against the seller of alcohol who sold intoxicating beverages to the drunk driver. Under Ohiolaw, a person may sue and recover damages from a licensed provider of alcoholic beverages that sells/furnishes alcohol to an intoxicated person under certain circumstances.[1]
A person is entitled to recover against the seller if:
(A) The person suffered injury caused by the negligent acts of the intoxicated person;
(B) The seller or one or more of its employees furnished intoxicating liquor or beer to the patron, after it was known to the seller or any of the seller’s employees that the patron was noticeably intoxicated.[2]
(C) The intoxication of the patron (drunk driver) proximately caused the person’s injuries and damages.[3]
A plaintiff can establish a defendant’s actual knowledge of one of its patron’s intoxication through either direct or circumstantial evidence that the liquor permit holder or it’s employee’s relation to, control over or direction of the patron’s condition was such as to give him actual personal information concerning that condition. A plaintiff can establish a defendant’s actual knowledge of intoxication through direct testimony that the patron in question acted intoxicated or expert testimony that the patron would have given off noticeable signs of intoxication based on the amount of alcohol consumed.[4]
A liquor permit holder has a statutory duty to observe and know when a patron is intoxicated.[5]
I have handled many of these cases and have obtained successful results (see Case Highlights page). It is imperative that you speak with an attorney about potential bar/restaurant liability when you have been seriously injured by a drunk driver. You must be proactive and ask the police if they investigated where the drunk driver consumed alcohol prior to the accident. The police have a responsibility to investigate whether a bar or restaurant owner violated Ohio’s Dram Shop law and, if so, provide you with an additional means of recovering damages for your injuries. Many bars and/or restaurants have large commercial liability policies that provide coverage for your injuries over and above what the drunk driver’s insurance may cover.
You must not hesitate. Act quickly. CALL NOW FOR A FREE CONSULTATION so I can help you obtain additional compensation for your injuries against the seller/furnisher of alcohol.
[1] O.R.C. §4399.18
[2] O.R.C. §4399.18(A)(1)
[3] O.R.C. §4399.18(B)
[4]Sullivan v. Heritage Lounge, 2005-Ohio-4675, Franklin App. No. 04AP-1261;
Bickel v. Moyer (Sept. 29, 1994), Hancock App. No. 5-94-14, 1994 Ohio App. LEXIS 4416;
Hlusak v. Sullivan (Cuyahoga 2000), Cuy. App. No. 74367, 2000Ohio App. LEXIS 2903.
[5] Lesnau v. Andate Enterprises, Inc. (2001),93 Ohio St. 3d 467, 469, Ohio Rev. Code §4301.22.
So the police are at your house and have some questions. They want to come inside and speak with you. The officer asks, "May I come in?" What should you do? Do you invite him in? Answer: NO. NO. NO. Are they conducting an investigation of you or a family member? You must find the answer to that question. If so, then the police are on a mission to solve a crime and obtain evidence. Your information may become evidence against you or someone else in your family. You have an absolute right to refuse entry into your home AND an absolute right to refuse to speak with the officer. What if the officer says if I refuse to answer questions he will charge me with obstruction of official business or obstruction of justice? WRONG. You have a constitutional right to refuse to answer questions and such a refusal is not a crime. In order to commit a crime, you must do an affirmative, positive act to impede the officer's investigation or obstruct his investigation. Silence, or the refusal to open a door, is not an affirmative act. There are plenty of cases that say a failure to speak or open a door when asked by an officer does not constitute a crime. So, politely tell the officer you are not going to allow him to enter your residence or answer any questions. As you close your door, you may want to add, "Have a nice day."