*1
General,
Schimmer,
DeWine,
General,
T.
Solicitor
Attorney
Alexandra
Michael
Solicitor,
A.
Hendershot,
Long, Deputy
Elisabeth
Deputy
Michael J.
Chief
Erdman,
General,
Attorneys
Solicitor,
C.
Assistant
and Elise Porter
Colleen
appellant.
Fulton,
Fulton,
Office,
urging
and Ross R.
Philip
Fulton Law
J.
Philip J.
curiae,
Association of Claimants’ Counsel
affirmance on behalf of amici
Ohio
Association for Justice.
Ohio
Appellee.
Ohio, Appellant,
Dunn,
State
Dunn,
State
325,
[Cite Ohio St.3d (No. 2012.) 2011 Decided March 2011-0213 Submitted October Lundberg J. Stratton, Today community-caretaking/emer- this court must decide whether the warrant allows the
gency-aid exception to the Fourth Amendment that the driver is armed and plans driver based affirmative, judgment kill himself. we answer in we reverse the Because the court of appeals. History
I. Facts and Procedural March Vandalia Police Officer Robert Brazel received On *2 that there was a suicidal male a tow truck and that he was driving kill at 114 planning to himself when he arrived Helke Road Vandalia. The driver, Dunn, gave defendant-appellee, the name of the Richard and dispatcher weapon. dispatcher indicated that he had a also noted that the vehicle was a truck name “big rig” displaying Sandy’s towing company. tow Officer Brazel was familiar with the Helke Road address because he had {¶ 3} seen a tow truck in front of the several times parked during patrol residence his route. Less than two after he saw dispatch, minutes heard Brazel the tow truck, and it was two from the approximately miles Helke address. Brazel him, it until followed another officer arrived to assist and then the two officers signaled for Dunn to pull over. truck, Dunn, After stopping crying, got who was out of the vehicle
{¶ 4} and his Dunn put up. holding hands The officers saw that was a cell but phone, not they any weapon. they did see Because were with an dealing allegedly suicidal Dunn person, safety handcuffed for their and his. The officers did any weapons find on Dunn other than a small Dunn pocketknife. placed was in Brazel’s cruiser. cruiser, Brazel that walking testified as he was Dunn to his Dunn
{¶ 5} glove stated: box.” Brazel asked him if he was referring gun, “[I]t’s Dunn yes. and said The other officer checked the glove compartment and found gun. a loaded secured, After the was Dunn weapon spoke Brazel with about the events
leading before, to the Dunn told the up stop. officer the week he had had problems with his soon-to-be ex-wife and had a hospital been taken to for a mental-health Dunn evaluation. informed the officer that he had intended to got shoot himself when he where was place drop off the semi that he Dunn towing. explained Brazel that he could be involuntary committed or go he could to the hospital voluntarily. Ultimately, Brazel drove Dunn to the patrol in his car. hospital 10, 2009, August On Dunn was improper indicted on one count of 2923.16(B). vehicle,
handling 2, 2009, of a firearm in a motor R.C. On October Dunn suppress, filed motion to traffic contending violated the Fourth Amendment and that improperly the officers had him interrogated of his Miranda Therefore, him informing without Dunn that all rights. asked from the resulting suppressed, including his statements be gun found Brazel was at glove compartment. witness called suppression hearing, testimony and the focused on the facts surrounding any Brazel testified that he had not observed Dunn commit traffic violations or him, violations of any other laws while he followed and he admitted that the officers had not provided warnings. with Miranda The trial court overruled the motion to suppress, holding the stop “ ” situation,’ Stubbs, was a to an ‘legitimate response State v. quoting (Oct. 2, 1998), Dist. 2d No. CA 1998 WL *3 and was therefore not an unreasonable seizure under Fourth Amendment. The court also held that Dunn’s statements and the evidence obtained from them should not be sup- pressed, because the had not engaged interrogation officers custodial but rather, spontaneous Dunn’s statements were and unsolicited. On December the court held a change-of-plea hearing which
Dunn pleaded no single contest count in the indictment. Dunn was sentenced to five years supervised probation ordered to attend court counseling pay costs. The Court of Appeals Montgomery County *3 court, judgment conviction, reversed the of the trial vacated the deemed Dunn’s plea withdrawn, of no contest granted and the motion to suppress. The case is now before this court our upon acceptance the state’s
{¶ 10}
Dunn,
discretionary appeal.
1458,
II. Dunn, begin by We noting irony who was suicidal when he was {¶ 11} stopped by the police, now contends that the police stopped should not have his vehicle to Dunn, render aid. If the had not stopped may he have harmed himself. And if the police himself, had not acted and Dunn had harmed or killed Dunn or his estate could have filed a civil against lawsuit for failure to to an respond emergency. Such is the act balancing of Fourth Amendment law. In analyzing the validity the court of stop, appeals relied on Maumee v. 87 Ohio St.3d N.E.2d and held that the state had not demonstrated that the dispatcher had reasonable basis for issuing caused the officers to truck. stop Dunn’s The court of appeals to have appears determined that the officers were not authorized to unless there was from which dispatcher could have concluded that evidence the information him supplied or her had sufficient reliability. indicia of This was not proper analysis below, As employ. dissenting judge noted evidentiary imposes that Weisner on in a suppression the state Ohio, hearing applies only to an “investigative stop” by Terry authorized U.S. 88 S.Ct. which entails seizure of a investigate suspicion activity. of criminal Since this was not a Terry the court of stop, appeals using analysis. erred this Amendment
A. Fourth provides: Constitution Fourth Amendment to the United States The houses, persons, papers, to be secure their right people “The seizures, violated, effects, shall not be unreasonable searches and against issue, cause, or affirma- supported by Oath upon probable no shall but Warrants searched, or tion, persons to be and the particularly describing place seized.” things be to the Fourth Amendment warrant exceptions There are number of case, community-caretaking the one to this
requirement, including applicable or “emergency-aid exception” which courts sometimes refer to as the exception, “exigent-circumstance exception.” was first addressed community-caretaking exception The United 16}
{¶ Dombrowski, Cady States (1973). Dombrowski, officer, off-duty Chicago police
L.Ed.2d 706 was arrest- driving following of drunk a one-car by police charge ed Wisconsin heavily damaged. accident in which Dombrowski’s rental car was Id. at 435-436. garage, car was towed from the scene to a owned and a few hours privately later, one of the officers searched Dombrowski’s vehicle without a arresting warrant, revolver, for his which the officer believed to be in his looking service vehicle, vehicle. Id. at 436-437. In the trunk of Dombrowski’s the officer found murder, him a which was convicted. linking eventually crime for court concluded that the trunk of the Ultimately, Id. 439. because *4 reasonably vehicle was vulnerable to intrusion vandals and the officer believed that the trunk contained a the search was not unreasonable within the gun, of the Fourth Id. at 448. meaning Amendment. “frequently The court local law-enforcement officers explained in no claim of criminal
investigate
liability
vehicle accidents which there is
what,
term, may
community
in
for want of a better
be described as
engage
functions,
detection,
or
caretaking
totally
investigation,
acquisi-
divorced from the
tion of
to the violation of a criminal statute.” Id. at 441. As
relating
Dombrowski,
in
the court noted in
ultimate standard set forth
the Fourth
“[t]he
is
Id. at 439.
the Fourth Amendment
Amendment
reasonableness.”
and seizures.
protects
government
citizens from
unreasonable
searches
(1985).
675, 682,
1568,
v.
470
105 S.Ct.
cy-aid exception.” For
example, Michigan
130 S.Ct.
(2009),
830 ex- community-caretaking/emergeney-aid that a Thus, recognize courts 21}
{¶
necessary
is
to allow
requirement
Fourth Amendment warrant
to the
ception
For
jeopardy.
life or limb is
situations where
to
to
police
respond
State,
(Fla.1994),
Supreme
444
the Florida
in Turner v.
645
So.2d
example,
defendant had
into a motel room when the
entry
officers’ warrantless
upheld
bed,
knocked,
walked from the door
the officers
the door after
opened
Id. at 447.
it at his head.
ajar,
gun
pointed
out a
leaving
pulled
the door
State,
(Fla.2006),
the Florida
in Seibert v.
Further,
470-471
So.2d
apartment
of an
entry
that the warrantless
and search
Court held
kill
threatened to
that a
in the
indicating
person
apartment
to a call
response
indicating
help.
circumstances
the need
exigent
was lawful because of
himself
into a man’s
entry
a warrantless
Appeals upheld
Circuit Court of
Eighth
And
and had locked
that he was suicidal
reported
police
bedroom when his wife
Uscanga-Ramirez,
v.
475 F.3d
United States
gun.
in the bedroom with
himself
Cty.,
(8th Cir.2007).
Finally, Goldsmith v. Snohomish
F.Supp.2d
(W.D.Wash.2008),
community-caretaking
court held that
arrest of a
applied
temporary
to
warrant
to officers’
exception
requirement
to render
injured
enabling paramedics
man for the sole
purpose
violent
(6th
Aukerman,
777, 785-786
Ziegler
also
See
necessary
medical aid.
512 F.3d
(9th
Oliver,
607, 610,
State v.
Cir.2008);
to the Fourth Amendment warrant an need they reasonably aid if believe that there is immediate person to render injury. life or serious protect prevent for their assistance case, armed dispatch regarding allegedly In this officers received a upon reaching an imminent to kill himself certain person plan and suicidal with “considerably on the street is less stopping destination. Given McArthur, Illinois v. itself,” home 531 U.S. police entry intrusive than into the a traffic effecting the officers’ under the Fourth harming Dunn from himself was reasonable prevent exception to the community-caretaking/emergency-aid Amendment. a driver allows officers requirement Fourth Amendment warrant kill himself. plans that the driver is armed and based on Voluntary B. Statement held, officers As the trial court below administer Miranda suspect subjected when a is both warnings applies only Arizona, Miranda custody interrogation. (1966). Here, on his own accord and from the vehicle emerged
L.Ed.2d 694 An glove compartment. immediately gun almost stated *6 Dunn in spontaneous unsolicited and statement such as the one made this case is not the of an so Miranda does not Rhode product interrogation, apply. See (1980). Innis, 291, 100 Island v.
III. Conclusion “ ‘ said, Burger policeman As Chief Justice Warren once on the “[t]he beat, car, or in the patrol makes more decisions and exercises broader discretion extent, affecting daily people, every day greater many lives of and to a ’ ” * * than a respects, judge ordinarily will exercise in a week Excerpted from an FBI Academy graduation address then Chief Justice the United Dimino, States E. Burger. Warren Police Paternalism: Com Searches, munity Caretaking, Assistance and Fourth Amendment Reasonable ness, 1485, 1527(2009), 66 Wash. & Lee L.Rev. quoting Abadinsky, Discretionary Carlton, quoting Justice 15 A Agenda Crime North Carolina 26-27 (1978). The community-caretaking/emergency-aid Fourth exception Amendment warrant requirement allows a objective- law-enforcement officer with ly grounds believe there is immediate need for his or her assistance to protect life or serious prevent injury community- to effect a caretaking/emergency-aid the officers in this case were authorized to stop Dunn based on that Dunn was to kill planned armed Accordingly, himself. we judgment reverse the of the court of appeals and judgment reinstate the of the trial court.
Judgment reversed. O’Connor, C.J., JJ., and McGee O’Donnell, Lanzinger, Cupp, Brown, concur. J., dissents.
Pfeifer, J., concurring.
Lanzinger,
I concur.
majority
clear,
As the
opinion makes
the rule requiring
evidence of a telephone tip’s reliability is confined to investigatory stops. Mau-
(1999).
mee v.
87 Ohio St.3d
prevented his if suicide. One wonders it was reasonable for the state to year passed. circumstances after more than a Dunn under these prosecute Nevertheless, the actions of rather than puts a motion to at issue suppress reasonably responsibly, in this case acted Because the officers prosecutors. violation and that the court of there was no Fourth Amendment agree judgment should be reversed. appeals’ *7 Brown, J.,
O’Connor, C.J., concur in the foregoing opinion. and McGee J., dissenting. Pfeifer, at prosecuted questionable. this case should have been all is Whether it It But it wasn’t. This case is properly prosecuted.
But was. could have been in prosecution’s simple us because of the failure meet its burden before of that traffic suppression hearing proving stop leading charge against prosecution’s Dunn was reasonable. The failure meet its burden comes from any attempt telephone tip its lack of to show that the that led to the had reliability. simple proposition sufficient indicia of This case should stand that when criminal evolve from a traffic that is a charges stop entirely upon based citizen’s call to a the state must that the citizen’s call dispatcher, prove presented reliability indicia of justify sufficient This is a case a Officer Brazel telephone tip. stopped about based that Dunn In
solely telephone tip danger. was suicidal and imminent (1999), Maumee v. 87 Ohio St.3d N.E.2d 507 this court can, itself, addressed whether a create telephone tip suspicion can, an justifying investigative stop. tip This court held that a telephone alone, an standing suspicion justifying investigative stop create reasonable where an an tip reliability: making investiga- has sufficient indicia of “Where officer relies the state must at a stop solely upon dispatch, tive demonstrate suppression hearing dispatch justified that the facts a reason- precipitating sic.) Weisner, activity.” able of criminal at one suspicion (Emphasis paragraph syllabus. But majority evidentiary requirement writes “the Weisner hearing applies only ‘investigative on the state to an imposes suppression Ohio, 1868, stop’ by Terry authorized v. 392 U.S. 88 S.Ct. L.Ed.2d 889 investigate suspicion which entails seizure of a a reasonable of person ¶ First, it an activity.” Majority opinion although criminal at 12. did involve intoxicated, limit traffic driving holding arrest for while Weisner does not its Second, the court stated involving suspicion although of criminal behavior. stops Arizona, L.Ed.2d 290 Mincey making officers from warrant- that “the Fourth Amendment does bar within is they reasonably less entries and searches when believe aid,” emergency of immediate courts cannot take on faith that an existed. need exigencies search must circumscribed which ‘strictly warrantless be “[A] initiation,’ Ohio, U.S., 25-26, S.Ct., at justify Terry [88 its 889,] justified by it search was simply L.Ed.2d cannot be contended [the] is, That any emergency threatening Mincey any life or limb.” at 393. as with seizure, emergency search or situation must be upon suspected based heart, At objectively totality reasonable based on the the circumstances. solely telephone tip is about whether a based can be upon Weisner reasonable, objectively holding and there is no reason that should not Weisner’s traffic for the an situa- stops purpose investigating- include made tion. of Dunn all of an investigative stop. the earmarks automobile, of an a car and *8 investigatory stop stopping detaining
context of its Prouse, a occupants constitutes seizure. Delaware (1979). Officer Brazel testified that he had turned on his lights pull overhead and siren to alert Dunn to to the side of the road. He and the officer township responding roadway also “blocked the and lit the area.” vehicle, air, Dunn from him in emerged put When his Brazel told to his hands eventually and he handcuffed him. The recording video was labeled by the as a traffic if Even there were a that a criminal requirement suspicion activity of is to
necessary gain protection of that evidence demonstrates suspect Dunn, i.e., Brazel did criminal activity by possession gun of a in his 2923.16(B), Dunn eventually charged vehicle. with a violation of R.C. which states, person “No shall or a in a knowingly transport have loaded firearm motor in vehicle such a manner that operator the firearm is accessible to the or any without passenger leaving the vehicle.” Brazel heard a dispatch male a truck driving planning tow to kill himself at a specific when he arrived residence. At the suppression hearing, any he was asked whether there was “Yes, dispatched information a regarding weapon. responded affirmatively: He But, advised that he was to kill himself. if going don’t remember said But, a—a there was firearm the vehicle or like that. there was some anything indication of a weapon dispatch.” with the Brazel’s behavior at that Dunn a indicated he feared He
weapon. backup. approached called He Dunn’s vehicle with his own drawn, Dunn to his hands testified that he had seen weapon ordering put up. He on him weapons see the obvious other in Dunn’s hand but “couldn’t phone a cell he safety Dunn for the officers’ because time.” He then handcuffed (“for him his As Brazel led to his cruiser weapons.” to check him for “wanted him, Brazel), Dunn told safety,” according “[I]t’s our to safety and “I referring: you Dunn was said are Brazel had no doubt as what glovebox.” a was involved. gun. gun Not a. Brazel knew referring gun.” gun, to the indicated that Dunn had a Brazel Dunn because the stopped up being that could cause his imminent death. ended weapon in his vehicle firearm in a motor vehicle such manner charged “hav[ing] with loaded operator any passenger leaving firearm accessible to the or without [was] justifying possessed in the call allegation vehicle.” The —that Thus, even very charge. in his vehicle—became the basis of the weapon “seizure of a applies only entailing that Weisner to situations assuming arguendo majority criminal as the suspicion activity,” a reasonable investigate ¶ 12, suspicion holds at the facts of this case demonstrate that there was sufficient trigger criminal in this of Weisner. activity protections case
II
circum
majority
exigent
wants
make this
case
about
it
or
Certainly,
community-caretaking exception
stances.
whether
is called the
Fourth
emergency-aid exception,
exception
there is an
Amendment’s
responding
warrant
cases where
are
situa
issue,
addressing
tions.
its line of cases
the United States
Regarding
wrote, “A
recently
officer could read these
decisions to mean that the Fourth Amendment
an officer to enter
permits
*9
if the officer has a
for
that there is an
concluding
residence
reasonable basis
U.S. —, —,
Huff,
imminent threat of violence.”
v.
565
132 S.Ct.
Ryburn
(2012).
990,
suicide; it brings charges upon stop, but if the state criminal based still must a to believe that the prove making that the officer the had reasonable basis on an informant’s call to a entirely driver was suicidal. Where the is based upon of the must be based the police dispatcher, the reasonableness the reliability tip generated police dispatch. in that officers had a majority many The cites cases which courts found of those cases involve a entry,
reasonable basis to conduct a warrantless but none by In case cited the supporting entry. every as the sole reason the telephone tip on their own observations. majority, police question the officers also relied
335 Dombrowski, 2523, 37 706 93 S.Ct. L.Ed.2d v. 413 U.S. Cady In 39} {¶ damaged (1973), heavily trunk the defendant’s searched the of police opened and the garage. it a owned Because they privately had had towed to vehicle after officer Chicago police to be an searching knew the defendant off-duty officer their service revolver required keep were Chicago police officers believed times, revolver. he trunk retrieve service nearby at all searched the not what and other items—was bloody clothing evidence he incriminating found— upon of the trunk was not based looking was for. The search originally he upon procedure normal report operating was based anonymous telephone —it an unguarded he a revolver from retrieving belief that was upon officer’s location. — Fisher, U.S. —, Michigan In v. L.Ed.2d call. at the Upon arriving residence police responded disturbance outside, as well as on they damaged parked saw blood vehicle
question, told They spoke house. to witnesses who them defendant door at —, 547, 175 410. inside the house. 130 S.Ct. at L.Ed.2d “going crazy” Id. defendant, window, Fisher, Jeremy officers see inside Through a could house, locked, and a screaming things. The back door was throwing home, and couch had front door. The entered the placed been block the charged a rifle at of the officers. Fisher was later pointed the defendant one had the home based Again, police with crimes related the firearm. entered officers’ own observations. part upon the Likewise, Stuart, Brigham City v. 41}
{¶
they
through
a home
after
had
entered
seen—
house, they
After
made arrests
fight
entering
a window—a
break out inside.
of a minor.
contributing
delinquency
for intoxication and
(1994), police
In
St.3d
{¶
personal
also
as the result of
observations
the officers
less entries
came
State,
(Fla.1994),
made
involved. In Turner v.
officers
warrantless
So.2d
his head.
entry
holding gun
into a hotel room when
saw
defendant
murders that the defendant had committed.
They then encountered evidence of
State,
(Fla.2006),
responded
So.2d
470-471
Seibert
44}
*10
{¶
from
person’s
a
call had come
the
regarding
person.
to a 9-1-1 call
suicidal
The
residence,
to the roommate
police spoke
arrived at the
roommate. When
call
who had
the 9-1-1
told that
defendant
inside
placed
were
the
the
They
residence and was suicidal.
the defendant’s
entered
residence after he
door,
inside, they
cracked
the
while
a
open
spotted
severed foot.
(8th
In
Uscangar-Ramirez,
Cir.2007),
United States v.
defendant’s wife consented the officers’ into the and she told her despondent. them that husband was armed and by In all the above cases upon majority, relied the at least some of the facts the justifying entry officers’ warrantless into the property defendant’s were gleaned the present from officers’ own investigation. case differs from all the cited by majority. cased Officer Brazel’s was not based on any personal only upon observation. It was based a police dispatch. And dispatch alone can form basis only valid when there is some the reliability evidence of of the information given dispatcher. to the
Ill
A
determination of
of a stop
reasonableness
under Weisner
{¶
“involves
47}
totality
consideration of ‘the
of the circumstances.’
United States
Cortez
411, 417, 101
621,
U.S.
66 L.Ed.2d
628-629. Under this
analysis, ‘both the content of
possessed
information
degree
and its
of
reliability’ are relevant
to
court’s
determination. Alabama v. White
Weisner,
U.S.
110 L.Ed.2d
309.”
87 Ohio
St.3d at
{¶ is from 48} tip, informant’s “the determination of reasonable will suspicion be limited to an examination of the weight reliability due that tip,” specifically, “whether the tip itself has sufficient of reliability indicia justify investigative stop.” Id. The most important determining reliability factors of an informant’s report are veracity, “the informant’s reliability, Id., and basis of knowledge.” citing White at 328. Weisner, In this court did on high not set bar of type
{¶ evidence 49} needed to prove dispatcher presents call sufficient indicia of reliability a traffic justify present The state “must the facts known dispatcher these situations.” testimony Weisner 298. The of informant who made is testimony the call not required. dispatcher is required. this court held that testimony from the arresting officer about the facts that him precipitated relayed as dispatcher was sufficient. This court even willing testimony allow that as *11 facts the officer all the not have told might though dispatcher even
support Id. fn. 1. completed. after the was dispatch until precipitated known to the Here, regarding no facts the state introduced then, for the trial court There no way, the caller. dispatcher regarding gave to the dispatcher. the caller of the information judge reliability indictment leading to Dunn’s prove failed to the state reasonable.
IV in a Whether not to result conviction. police work does have Great or motorists, parents, find their lost children helping are stranded assisting communities situations, officers serve their dangerous potentially calming case, on blotters. this up deeds that do show daily performing good He Dunn’s suicide. interrupted potential He exemplary Officer Brazel did work. Dunn; arrest no or Dunn. He did not injury the situation with himself defused he help him the mental-health instead, hospital get took him to a local over upset Dunn himself? Because Dunn was Why did Brazel drive needed. hospital by ambulance. This was trip billed for earlier having been a well-trained impeccable professionalism by mercy mission of with performed officer. crime, with a and we charge But decided to prosecutor him. against the case properly proved must consider whether state therefore reliability of its failed suppression hearing, prove At the the state basis tip in a the informant’s served as entire tip informant’s situation where appeals The court of was therefore for to Dunn’s indictment. stop leading Accordingly, the conviction. dissent. reversing correct Jr., Attorney, Carley J. County Prosecuting Mathias H. Heck Montgomery Cole, for Timothy Prosecuting Attorneys, appellant. J. Assistant Ingram Schaengold, appellee. C. Gary General, General, Schimmer, DeWine, Attorney
Michael Alexandra T. Solicitor Driscoll, General, Attorney urging H. reversal on behalf and Thaddeus Assistant curiae Attorney of amicus Ohio General. Defender, Masters, Jeremy Assistant Public
Timothy Public J. Young, Defender, amicus curiae Ohio Public Defender. urging affirmance on behalf of