City of Dayton v. Erickson

[This opinion has been published in Ohio Official Reports at 

76 Ohio St.3d 3

.]




             CITY OF DAYTON, APPELLANT, v. ERICKSON, APPELLEE.
                    [Cite as Dayton v. Erickson, 

1996-Ohio-431

.]
Criminal law—Where police officer stops vehicle based on probable cause that
        traffic violation has occurred, the stop is not unreasonable under the
        Fourth Amendment to the United States Constitution even if the officer
        had some ulterior motive for making the stop.
                                  __________________
Where a police officer stops a vehicle based on probable cause that a traffic
        violation has occurred or was occurring, the stop is not unreasonable under
        the Fourth Amendment to the United States Constitution even if the officer
        had some ulterior motive for making the stop, such as a suspicion that the
        violator was engaging in more nefarious criminal activity. (United States
        v. Ferguson [C.A.6, 1993], 

8 F.3d 385

, applied and followed.)
                                  __________________
         (No. 95-859—Submitted April 16, 1996—Decided July 3, 1996.)
     APPEAL from the Court of Appeals for Montgomery County, No. 14712.
                                  __________________
        {¶ 1} On May 13, 1994, Dayton Police Officer David Klosterman was on
routine patrol in a marked police cruiser when a noisy black Oldsmobile drove past
him on Pierce Avenue. Klosterman ran a check on the license plate number of the
vehicle using a computer terminal in his police cruiser. The computer check
revealed that the registered owner of the vehicle did not have a valid driver’s
license. Klosterman decided to stop the Oldsmobile but, by the time he caught up
with it, the vehicle was parked and unoccupied. Therefore, Klosterman continued
on his routine patrol.
                            SUPREME COURT OF OHIO




       {¶ 2} Between fifteen and thirty minutes later, the same black Oldsmobile
drove past Klosterman on another city street. Klosterman pulled in behind the
Oldsmobile and followed it for a short distance (one or two blocks) until the driver
of the vehicle failed to signal a turn. Klosterman stopped the Oldsmobile in
connection with this minor traffic offense. Cindy Erickson, appellee, was the driver
of the vehicle.   During the stop, Klosterman learned that appellee’s driving
privileges had been suspended. Accordingly, Klosterman cited appellee for failure
to signal a turn, driving without a valid operator’s license, and driving under
suspension.
       {¶ 3} Thereafter, appellee filed, in the Dayton Municipal Court, a motion to
suppress the evidence obtained during the traffic stop. Appellee claimed that
Klosterman had stopped her for the turn signal violation as a pretext to investigate
whether she had been driving without a valid operator’s license. In this regard,
appellee urged that the traffic stop had violated the Fourth Amendment prohibition
against unreasonable searches and seizures, and that any evidence obtained as a
result of the stop was subject to exclusion. At a hearing on the motion, Klosterman
testified that the primary reason he had stopped appellee was because of the turn
signal violation. Klosterman estimated that he normally stops between one and
three drivers per week for failure to signal a turn. Additionally, Klosterman
maintained that he would have stopped appellee for the turn signal violation
irrespective of his earlier encounter with appellee’s vehicle on Pierce Avenue.
Following the hearing, the Dayton Municipal Court granted appellee’s motion to
suppress, holding that:
       “The proper inquiry in this case is ‘not whether the officer COULD validly
have made the stop, but whether under the same circumstances a reasonable officer
WOULD have made the stop in the absence of the invalid purpose’. United States
v. Smith, 

799 F.2d 704

 (11th Cir. 1986). Whether a Fourth Amendment violation




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occurs depends upon an objective assessment of the officer’s actions and not upon
his actual state of mind.
         “Based upon the testimony of the officer, the traffic stop could have been
validly made. However, because an officer theoretically could have validly stopped
the car for a right turn signal violation is not determinative. Similarly immaterial
is the actual subjective intent of the officer. His actions and description of the
circumstances surrounding the stop are however relevant to [the] inquiry.
         “By looking at the facts and using an objective standard, it is unbelievable
that a reasonable officer would stop a vehicle for a right turn violation absent any
invalid purpose.
         “The Court finds that the officer merely stopped the vehicle for a right turn
signal violation as a subterfuge to question the driver concerning a greater offense
of the law. The traffic stop was pre-textual and thus, unreasonable and any
evidence obtained from it must be excluded.”
         {¶ 4} The city of Dayton, appellant, appealed from the trial court’s decision
granting the motion to suppress.1 On appeal, the court of appeals, by a two-to-one
vote, affirmed the judgment of the trial court, holding that:
         “To find that a stop was a pretext, the trial court must make two findings.
First, it must find that the police officer did not have a reasonable, articulable
suspicion to stop the defendant for the more serious offense. Second, the trial court
must find that a reasonable police officer would not have stopped the defendant for
the minor offense absent the invalid purpose. * * *




1. In conformance with Crim.R. 12(J), the prosecutor filed a timely notice of appeal from the trial
court’s decision granting the motion to suppress and certified that (1) the appeal was not taken for
the purpose of delay, and (2) that the trial court’s decision granting the motion had rendered the city
of Dayton’s proof with respect to the pending charge so weak in its entirety that any reasonable
possibility of effective prosecution had been destroyed.




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       “In the first step of the trial court’s two-part analysis, it found that Officer
Klosterman did not have probable cause to stop Erickson for the more serious
offense of driving without a valid operator’s license. [Prior to the stop,] Officer
Klosterman had information from the police computer that the registered owner of
the Oldsmobile did not have a valid driver’s license, but he did not know if the
driver of the vehicle was the owner. * * *
       “[I]n this case, the police officer had no particular reason to believe that the
driver, Erickson, was the owner of the vehicle. No evidence was presented in the
trial court that the police officer had a description of the vehicle’s owner from the
BMV, knew the owner’s gender prior to the stop, or had actually observed the
driver prior to the stop. Under these circumstances, the trial court could have
reasonably concluded * * * that the officer did not have a reasonable and articulable
suspicion that the operator was engaged in criminal activity so as to justify an
investigative stop.
       “Since the trial court concluded that the police officer did not have a
reasonable and articulable basis to stop Erickson for driving without a license, it
proceeded to the second step in the analysis: whether a reasonable officer would
have stopped Erickson for the minor traffic violation [for failing to signal a turn]
absent an invalid purpose. The proper test is not whether the police officer could
have legally stopped the driver, but whether a reasonable officer would have done
so under the circumstances. United States v. Smith (C.A. 11, 1986), 

799 F.2d 704

,
708 * * *.
       “* * *
       “* * * We conclude, based upon our review of the record, that the trial court
could have reasonably decided that a reasonable police officer would not have
stopped Erickson for the turn signal violation absent an improper purpose, and that
the trial court did not abuse its discretion.” (Emphasis sic.)




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                                January Term, 1996




       {¶ 5} Conversely, Judge Grady of the court of appeals, in a separate
dissenting opinion, concluded that Klosterman had been justified in stopping the
Oldsmobile for purposes of investigating whether the driver had a valid operator’s
license. Accordingly, in his dissent, Judge Grady found that the stop was not
unlawfully pretextual.
       {¶ 6} The cause is now before this court pursuant to the allowance of a
discretionary appeal.
                               __________________
       J. Anthony Sawyer, Dayton Director of Law, and John J. Scaccia, Chief
Prosecuting Attorney, for appellant.
       Lynn G. Koeller, Montgomery County Public Defender, Charles L. Grove
and Anthony R. Cicero, Assistant Public Defenders, for appellee.
                               __________________
       DOUGLAS, J.
       {¶ 7} The court of appeals determined that a “pretextual” traffic stop is
constitutionally invalid. The court of appeals defined a “pretextual stop” as one in
which a police officer “uses a minor violation of the law to make a stop which the
officer would not otherwise make in order to conduct a search or an interrogation
for an unrelated, more serious offense for which he does not have the reasonable
suspicion necessary to support a stop.” The court of appeals’ majority upheld the
trial court’s findings that the traffic stop in this case was a pretext because (1) the
police officer did not have an articulable reasonable suspicion to stop appellee to
investigate the more serious offenses of driving without a valid license and driving
under a suspended license, and (2) a reasonable police officer would not have
stopped appellee for the turn signal violation absent an invalid purpose. For the
reasons that follow, we reverse the judgment of the court of appeals, vacate the
judgment of the trial court, and remand this cause to the Dayton Municipal Court
for further proceedings.




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                             SUPREME COURT OF OHIO




       {¶ 8} The question whether a traffic stop violates the Fourth Amendment to
the United States Constitution requires an objective assessment of a police officer’s
actions in light of the facts and circumstances then known to the officer. United
States v. Ferguson (C.A.6, 1993), 

8 F.3d 385, 388

. Thus, the question whether a
Fourth Amendment violation occurred in this case depends upon an objective
assessment of the officer’s actions at the time of the traffic stop, and not upon the
officer’s actual (subjective) state of mind.
       {¶ 9} The federal courts have generally taken two distinct approaches to the
required objective assessment of an officer’s actions in determining whether a
traffic stop is invalid as pretextual. One of these approaches, commonly referred
to as the “would” test or the “reasonable officer” standard, requires a determination
whether a reasonable police officer under the same circumstances would have made
the traffic stop in the absence of some invalid purpose. See United States v. Smith
(C.A.11, 1986), 

799 F.2d 704, 708

. See, also, 

Ferguson, supra,

8 F.3d at 388

(discussing the standard for analyzing claims of allegedly pretextual traffic stops
under the “would” test). The trial court and the court of appeals adopted this test
in determining that Klosterman’s actions in stopping appellee for a turn signal
violation was a mere pretext to investigate whether appellee had a valid driver’s
license. The trial court held, and the court of appeals’ majority agreed, that a
reasonable police officer would not have made the stop for the turn signal violation
absent some ulterior, improper motivation. Accordingly, both courts determined
that the stop was pretextual and that it violated the Fourth Amendment prohibition
against unreasonable searches and seizures.
       {¶ 10} Conversely, the second and more prevalent approach to analyzing
claims of allegedly pretextual traffic stops, commonly referred to as either the
“could” test or the “authorization” standard, seeks to determine not whether a
reasonable police officer would have stopped the defendant absent some invalid
purpose, but whether an officer could have stopped the particular vehicle in




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                                January Term, 1996




question for a suspected traffic violation. See 

Ferguson, supra,

8 F.3d at 388-389

(discussing the standard for analyzing claims of allegedly pretextual traffic stops
under the “could” test). Federal courts adopting this approach have concluded that
where an officer has either a reasonable suspicion or probable cause to stop a
motorist for a traffic violation, the stop is constitutionally valid regardless of the
officer’s underlying intent or motivation for stopping the vehicle in question. See,
e.g., United States v. Scopo (C.A.2, 1994), 

19 F.3d 777

 (Traffic stop was not
pretextual where officers had probable cause to stop defendant for minor traffic
offenses, even though defendant was under surveillance for suspected underworld
activities and the officers were members of a strike force created to monitor the
defendant and others.); United States v. Botero-Ospina (C.A.10, 1995), 

71 F.3d 783, 787

, overruling United States v. Guzman (C.A.10, 1988), 

864 F.2d 1512

 (“[A]
traffic stop is valid under the Fourth Amendment if the stop is based on an observed
traffic violation or if the police officer has reasonable articulable suspicion that a
traffic or equipment violation has occurred or is occurring. It is irrelevant, for
purposes of Fourth Amendment review, ‘whether the stop in question is sufficiently
ordinary or routine * * *.’ It is also irrelevant that the officer may have had other
subjective motives for stopping the vehicle.”); United States v. Trigg (C.A.7, 1989),

878 F.2d 1037, 1041

 (“[S]o long as the police are doing no more than they are
legally permitted and objectively authorized to do, [the resulting stop or] an arrest
is constitutional.”); United States v. Fiala (C.A.7, 1991), 

929 F.2d 285, 287-288

(same principle); United States v. Cummins (C.A.8, 1990), 

920 F.2d 498, 500-501

(An officer who observes a traffic offense has probable cause to stop the driver of
the vehicle, and an otherwise valid stop does not become unreasonable merely
because the officer has “intuitive suspicions” that the occupants of the vehicle are
engaged in some sort of criminal activity.); United States v. Maejia (C.A.8, 1991),

928 F.2d 810, 814-815

 (“[A]n otherwise valid traffic stop does not become
unreasonable merely because the officer knows that the car is allegedly involved in




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the transportation of drugs. * * * When an officer reasonably believes that a driver
is under the influence of drugs or alcohol, and supports that belief with articulable
facts, it is of no consequence that the vehicle was already under surveillance for
suspected drug-related crimes.”); and United States v. Bloomfield (C.A.8, 1994), 

40 F.3d 910, 915

 (“Any traffic violation, however minor, provides probable cause for
a traffic stop. * * * If the officer is legally authorized to stop the driver, any
additional ‘underlying intent or motivation’ does not invalidate the stop.”). See,
also, United States v. Johnson (C.A.3, 1995), 

63 F.3d 242

; United States v. Jeffus
(C.A.4, 1994), 

22 F.3d 554, 557

; and United States v. Roberson (C.A.5, 1993), 

6 F.3d 1088, 1092

.
       {¶ 11} In 

Ferguson, supra,

8 F.3d 385

, the United States Court of Appeals
for the Sixth Circuit adopted what it considered to be a variation of the traditional
“could” test for analyzing claims of allegedly pretextual traffic stops. However,
the Ferguson test differs only minimally (if at all) from the “could” test or
“authorization” standard adopted and applied by other federal circuit courts of
appeals. Appellant urges us to adopt the Ferguson test in analyzing appellee’s
claim that the traffic stop in this case was unlawful as pretextual.
       {¶ 12} In 

Ferguson, supra,

8 F.3d 385

, a police officer in a marked cruiser
was speaking with a security guard in a motel parking lot when the officer observed
Cecil Ferguson drive into the parking lot in a Lincoln automobile. Ferguson’s car
was followed by a Ford automobile driven by Leonard Lester. Ferguson got out of
the Lincoln and walked toward the back of the parking lot. When the police officer
went to leave the parking lot, he observed Lester, who was still seated in the Ford,
lie down across the front seat of the vehicle in an apparent attempt to hide. Having
become suspicious of the situation, the officer parked his cruiser across the street
and continued to observe the two men. Eventually, Ferguson got into the Ford with
Lester, drove to a different spot in the parking lot, and went into a motel room.
Ferguson left the room several minutes later and got back into the Ford with Lester.




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                                January Term, 1996




The two men then drove to Ferguson’s Lincoln, removed a briefcase from the
Lincoln, and drove the Ford back to the motel room. Ferguson entered the motel
room carrying the briefcase and then emerged from the room with the briefcase still
in hand. The two men then drove out of the parking lot in the Ford automobile,
leaving the Lincoln behind.
       {¶ 13} In Ferguson, the police officer followed the Ford until he noticed
that there was no visible license plate on the vehicle -- a violation of a city traffic
ordinance. Thus, the officer stopped the Ford automobile and, among other things,
questioned Lester (the driver) concerning the events at the motel. Lester was never
cited for or questioned about the minor traffic offense. However, Ferguson was
arrested when the officer noticed a firearm on the front seat of the vehicle. In
searching the vehicle and the briefcase incident to Ferguson’s arrest, police found
cocaine and other evidence of drug trafficking.         Accordingly, Ferguson was
indicted for the federal offenses of drug trafficking and possession of a firearm
during and in relation to a drug trafficking crime.
       {¶ 14} Ferguson moved to suppress the evidence obtained during the traffic
stop, claiming that the stop was pretextual and thus illegal. At a hearing on the
motion, the police officer testified that the primary reason he had stopped the
vehicle was because of Ferguson and Lester’s suspicious activity at the motel.
However, the officer also testified that he had stopped the vehicle for a license plate
violation. Following the hearing, the federal district court denied the motion to
suppress. Thereafter, Ferguson pled guilty to the drug charge while reserving his
right to appeal the denial of the motion to suppress. On appeal, a panel of the United
States Court of Appeals for the Sixth Circuit reversed Ferguson’s conviction and
vacated his sentence, finding that the traffic stop had been pretextual and, thus,
unlawful. However, the Sixth Circuit vacated the panel’s decision in order to
address, en banc, the following question: “‘Where an officer has probable cause to
make a traffic stop, and also has motivations that are unrelated to the traffic stop




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such as an intent to investigate suspicious activity, may the stop be deemed
unconstitutional because it is pretextual?’” 

Ferguson, supra,

8 F.3d at 387

.
        {¶ 15} In Ferguson, the Sixth Circuit, sitting en banc, affirmed the district
court’s decision denying the motion to suppress. The Sixth Circuit found that the
traffic stop was not violative of the Fourth Amendment because the police officer
had probable cause to stop Ferguson and Lester based on the minor traffic violation
of driving without a visible license plate. 

Id.,

8 F.3d at 391-393

. In so holding, the
Sixth Circuit stated, in part:
        “We address today only the issue of whether a traffic stop, which is
supported by probable case but motivated -- at least in part -- by suspicions
inadequate to support a stop, may be held to be unconstitutional because it is
pretextual. We find that neither the Smith test [United States v. 

Smith, supra,

799 F.2d 704

] of whether a reasonable officer would have stopped the car for a traffic
violation but for the invalid motive (or its variations as found in the pretextual stop
cases decided in this Circuit), nor the language of the standard set out by other
circuits of whether the police officer could have stopped the car for a traffic
violation is satisfactory in determining this issue. At least insofar as the ‘would’
test might be applied to the circumstances of a stop based upon probable cause, we
find it difficult to distinguish, for example, between the officer’s subjective intent
and the ‘objective evidence’ of the officer’s actual interest in investigating the kind
of offense for which he made the stop. * * * As for the ‘could’ test, as we have
indicated, no circuit adopting that test has expressly said that a stop can be justified
merely by an after-the-stop determination that the officer theoretically could have
stopped the car for a traffic violation, although he did not notice at the time of the
stop that a violation had occurred. However, in our view, some of the language
utilized by the courts that subscribe to the ‘could’ test is sufficiently imprecise to
leave it susceptible of such a reading.




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                                January Term, 1996




       “We hold that so long as the officer has probable cause to believe that a
traffic violation has occurred or was occurring, the resulting stop is not unlawful
and does not violate the Fourth Amendment. * * * We focus not on whether a
reasonable officer ‘would’ have stopped the suspect (even though he had probable
cause to believe that a traffic violation had occurred), or whether any officer ‘could’
have stopped the suspect (because a traffic violation had in fact occurred), but on
whether this particular officer in fact had probable cause to believe that a traffic
offense had occurred, regardless of whether this was the only basis or merely one
basis for the stop. The stop is reasonable if there was probable cause, and it is
irrelevant what else the officer knew or suspected about the traffic violator at the
time of the stop. It is also irrelevant whether the stop in question is sufficiently
ordinary or routine according to the general practice of the police department or the
particular officer making the stop.
       “We note that this probable cause determination, like all probable cause
determinations, is fact-dependent and will turn on what the officer knew at the time
he made the stop. Under this test, it is clear that the courts may not determine
whether there was probable cause by looking at events that occurred after the stop.
* * * [I]f the facts known to the officer at the time of the stop were sufficient to
constitute probable cause to believe that a traffic violation had occurred, a
reviewing court may not look at the officer’s ordinary routine, or his conduct or
conversations that occurred before or after the stop to invalidate the stop as
pretextual.
       “We believe that by using this standard, we will better achieve the objective
assessment of the officer’s actions required by the [United States] Supreme Court.
* * * We also will avoid some of the problems inherent in the ‘would’ and ‘could’
tests. By adopting this standard, we make explicit that which was simply an
inference under our prior cases: traffic stops based on probable cause, even if other
motivations existed, are not illegal.




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       “We accomplish several things by holding that a traffic stop, supported by
probable cause, of a vehicle as to which the officer also has suspicions of more
nefarious activity, is not unreasonable because it is based at least in part upon other
motivations. We ensure that the validity of such stops is not subject to the vagaries
of police departments’ policies and procedures concerning the kinds of traffic
offenses of which they ordinarily do or do not take note. We ensure as well that
those who are engaged in more nefarious activity are not insulated from criminal
liability for those activities simply because a judge determines that the police
officer who executed the traffic stop, had he been the mythical reasonable officer,
would not have stopped them for the traffic offense that they in fact committed.
We ensure that law enforcement officers who see actual violations of the law, even
minor ones, are not left to ponder whether their actions in enforcing the law are
appropriate. Finally, we ensure that the courts leave to the legislatures the job of
determining what traffic laws police officers are authorized to enforce and when
they are authorized to enforce them.” (Emphasis sic.) 

Ferguson, supra,

8 F.3d at 391-392

.
       {¶ 16} We agree with the Sixth Circuit’s cogent analysis of the issue.
Specifically, we are in complete agreement with the Sixth Circuit that a traffic stop
based upon probable cause is not unreasonable, and that an officer who makes a
traffic stop based on probable cause acts in an objectively reasonable manner.
Accordingly, we adopt the test outlined in 

Ferguson, supra,

8 F.3d at 391-393

, and
hold that where a police officer stops a vehicle based on probable cause that a traffic
violation has occurred or was occurring, the stop is not unreasonable under the
Fourth Amendment to the United States Constitution even if the officer had some
ulterior motive for making the stop, such as a suspicion that the violator was
engaging in more nefarious criminal activity.
       {¶ 17} In the case at bar, Officer Klosterman clearly had probable cause to
stop appellee based on the traffic violation (failure to signal a turn) which occurred




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                                      January Term, 1996




in the officer’s presence. Thus, the stop was constitutionally valid.2 Klosterman
obtained appellee’s driver’s license and ran a computer check in connection with
appellee’s detention for the minor traffic violation. As a result, the check revealed
that appellee had no driving privileges and no valid license. Thus, Klosterman cited
appellee for the additional criminal offenses, which he had every right to do given
the information obtained during the traffic stop. The Fourth Amendment to the
United States Constitution, and Section 14, Article I of the Ohio Constitution,
prohibit unreasonable searches and seizures. We find no constitutional violation
here.
         {¶ 18} As a final matter, we note that there are a number of reported Ohio
appellate decisions adopting the “would” test or some similar standard for
analyzing claims of pretextual traffic stops. See, e.g., State v. Bishop (1994), 

95 Ohio App.3d 619, 622

, 

643 N.E.2d 170, 171-172

; State v. Richardson (1994), 

94 Ohio App.3d 501, 505-508

, 

641 N.E.2d 216, 219-220

; State v. Spencer (1991), 

75 Ohio App.3d 581, 585

, 

600 N.E.2d 335, 337

; and State v. Whitsell (1990), 

69 Ohio App.3d 512, 523-524

, 

591 N.E.2d 265, 272-273

. But, see, State v. Carlson (1995),

102 Ohio App.3d 585, 589-593

, 

657 N.E.2d 591, 594-597

 (adopting the Ferguson
approach to determining the validity of an allegedly pretextual traffic stop). Today,
we specifically reject the views of those courts that have analyzed claims of
allegedly pretextual traffic stops under the “would” standard. Rather, consistent
with the views of those courts that have adopted the “could” test or a slight variation
of that test (as in Ferguson), we conclude that where an officer has an articulable
reasonable suspicion or probable cause to stop a motorist for any criminal violation,
including a minor traffic violation, the stop is constitutionally valid regardless of


2. Given our determination that Officer Klosterman had probable cause to believe that a traffic
offense had been committed based upon his observation that appellee failed to signal a turn, we need
not reach the merits of appellant’s contentions that Klosterman had a reasonable suspicion to support
the stop based on the information he had previously obtained that the registered owner of the vehicle
had no valid driver’s license.




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the officer’s underlying subjective intent or motivation for stopping the vehicle in
question.
       {¶ 19} Accordingly, we reverse the judgment of the court of appeals, vacate
the trial court’s decision granting appellee’s motion to suppress, and remand this
cause to the trial court for further proceedings on the pending criminal charges.
                                                                 Judgment reversed
                                                              and cause remanded.
       MOYER, C.J., RESNICK, F.E. SWEENEY, COOK and STRATTON, JJ., concur.
       PFEIFER, J., dissents.
                                 __________________
       PFEIFER, J., dissenting.
       {¶ 20} You drive by a policeman, and for some reason, he doesn’t much
like the looks of you. Maybe your car is shabby; maybe you are. Maybe you are
out late in a high-crime neighborhood. Maybe you are in a low-crime area, but you
are part of a high-crime demographic group. The reason does not much matter—
to him you are a suspicious character, that’s all. The policeman pulls up behind
you. You will make a mistake. You say you did use your turn signal to change
lanes? He didn’t see it. Or, prove to him that you did not exceed the speed limit
by one mile per hour when you were busy looking at him in your rear-view mirror.
You’ll never be charged with the violations—you’re just being stopped and
detained to see if his hunch about you was right. Perhaps he’ll ask if you mind if
he searches your car. You wouldn’t refuse unless you had something to hide, right?
You have just been detained and possibly searched because someone did not like
the looks of you.
       {¶ 21} The majority holds today that police officers, based upon a hunch of
nefarious activity, may stop a car they would not stop under any other
circumstances. I agree with the trial and appellate courts in this case which held,
citing United States v. Smith (C.A. 11, 1986), 

799 F.2d 704, 708

, that the relevant




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                                January Term, 1996




inquiry is not whether the officer could have made the stop, but whether a
reasonable officer would have done so in the absence of the invalid purpose. The
majority opinion allows the existence of a technical offense to obfuscate the true
motivation for what otherwise would be an invalid stop. If the stop would not have
been made but for the invalid purpose, the invalid purpose is the motivation behind
the stop. The fruits of such stops should be suppressed, as the lower courts correctly
held.
        {¶ 22} Fourth Amendment cases are some of the most difficult cases for
judges to decide for the simple reason that it is most often unsympathetic people
who seek protection from unlawful searches. These cases are brought by persons
confronted with damning evidence, which evidence, they claim, while relevant and
probably persuasive, was unlawfully gained and ought to be ignored. While it is
always a criminal defendant seeking the Fourth Amendment’s protection,
ultimately Fourth Amendment jurisprudence protects us all from unreasonable
intrusions on our liberty. It was not a criminal who lost in this case today—all of
us who value our freedom did.
                               __________________




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