Update: The merit decision in this case was handed down March 15, 2012. Read the analysis of the decision here.
On October 19 the Supreme Court of Ohio heard oral argument in State v. Dunn, 2011-0213. The issue is what the state must prove to justify a warrantless emergency stop based on a citizen tip to a dispatcher.
Police in Vandalia received a dispatcher’s report based on a tip that a man driving a tow truck was possibly suicidal, and had a gun in the truck. The police found the truck driven by Richard Dunn, and pulled it over. Dunn was not violating any traffic laws. Dunn told the officers there was a loaded gun in the glove compartment. The police confiscated the gun and took Dunn to a hospital. Dunn later pled no contest to the charge of improper handling of a firearm in a motor vehicle. During the proceedings, Dunn moved to suppress the evidence, arguing that the police had no constitutional basis for conducting the traffic stop. The trial court denied the motion, finding the stop was a legitimate response to an emergency situation.
The Second District Court of Appeals reversed, in a split decision. While the appeals court found that neither the dispatcher nor the citizen tipster had to testify, the state still must establish the facts on which the dispatcher relied, and the record in this case was totally silent on that point.
Read the oral argument preview of this case here.
The prosecutor argued that the court of appeals improperly applied the test necessary for a Terry stop, where the police need reasonable suspicion that criminal activity is afoot, to a stop for an emergency. An emergency stop does not need to be evaluated in the same way as a Terry stop. The touchstone of an emergency stop is always reasonableness. The test should be a totality of the circumstances test.
Defense counsel argued that the record in this case is so sparse that the court of appeals decision must stand. There was absolutely no testimony at the suppression hearing to support the fact that there was an emergency situation to justify the stop. And objectively the police observed absolutely no kind of traffic violation by Dunn.
The justices seemed uneasy about tying the hands of the police when a person in a vehicle was a danger to himself or others, but also seemed to see a difference between an emergency and criminal activity.
Should there be different standards for Terry stops and medical emergency stops?
Chief Justice O’Connor commented that she sees a difference between police responding to a report of a person possibly harming himself and one engaged in criminal activity. She asked whether the state was advocating that the criminal standard applicable in Terry stops should not apply to an emergency stop?
Justice O’Donnell asked whether the Court really needs to re-write any standard here, or whether one already exists. Wasn’t Maumee v. Weisner (1999) 87 Ohio St.3d 295, 720 N.E.2d 507 the correct test to apply here? Later he asked whether the test should be a totality of the circumstances with emergency as one of the circumstances.
Justice Lanzinger asked if the state was saying that if the tip was for an emergency, the reliability of the tip did not have to be examined? Later she noted that as a practical matter in this case the stop seemed more like a stop for criminal activity than one for an emergency.
What goes in to any totality of the circumstances test?
Chief Justice O’Connor asked whether the officer’s intent, which was to address an emergency, was relevant here. Is an officer’s motives one of the circumstances that should be taken into account?
Surely we don’t want to allow something pretextual?
Chief Justice O’Connor commented that surely the state would not want the court to write a rule which would allow the state to use the emergency stop as a pretext for finding contraband? (no, the state did not).
What was in this record, anyway?
Chief Justice O’Connor commented about what she referred to as a “packet of information” that just wasn’t there in this case—no testimony from the dispatcher about the reliability of the tip, no testimony from the officer that the stop was based on the dispatcher’s receipt of information, no information about the caller, a bare record.
Please, how about a little prosecutorial discretion here?
Justice Pfeifer asked why, since the state was so strongly advocating reasonableness, it didn’t use a little reasonableness of its own and not charge Dunn criminally. (the state responded that he was placed in diversion)
Justice Stratton also, as an aside, later questioned the handling of the mentally ill in criminal cases—an ongoing concern of hers.
So, would you rather the police do nothing here?
A seemingly irritated Justice Stratton pressed defense counsel, asking whether it was his position that since there was no identifiable caller police should not have responded to this call –noting the irony that Dunn may be alive to contest this entire matter because the police had responded. Would the defense have the court write a rule that the police should not respond to these kinds of calls if they don’t meet the Terry standard? If the police hadn’t responded would the state be on the wrong end of a wrongful death suit here? And what about danger to the officers? These kinds of stops are very dangerous for them, too.
Exactly what is the defendant objecting to?
Justice McGee Brown commented that she had thought the defense was objecting to the search, but wasn’t the real objection to the stop itself
Justice Stratton agreed that she was confused about exactly what the defense was objecting to– the stop, or the search? Didn’t the tip give the police enough to go on here? Was the defense suggesting that officers cannot make stops of this kind—if so that’s a terrible message to send for the public’s safety.
What rule should the court write?
Chief Justice O’Connor struggled to articulate a test in which contraband found during an emergency stop such as the gun in this case could not be used to produce an arrest, so that the police could not transform an emergency stop into a criminal one. To which Justice Stratton mused that maybe there should be a hybrid—an emergency standard for the stop, and a Terry-standard for the search.
How it Looks from the Bleachers
Surely the court is not going to write a rule that the police cannot make a stop without a warrant for an emergency. But the justices seemed troubled about bootstrapping criminal searches onto emergency stops, and may try and write some kind of hybrid test using one standard for an emergency stop, but another for a search for contraband.