City of Maumee v. Weisner

[This opinion has been published in Ohio Official Reports at 

87 Ohio St.3d 295

.]




             CITY OF MAUMEE, APPELLANT, v. WEISNER, APPELLEE.
                    [Cite as Maumee v. Weisner, 

1999-Ohio-68

.]
Criminal law—Police officer makes an investigative stop of an automobile,
        relying solely upon a dispatch—State must demonstrate at suppression
        hearing that facts precipitating the dispatch justified a reasonable
        suspicion of criminal activity—Telephone tip can, by itself, create
        reasonable suspicion justifying an investigative stop, when.
1.      Where an officer making an investigative stop relies solely upon a dispatch,
        the state must demonstrate at a suppression hearing that the facts
        precipitating the dispatch justified a reasonable suspicion of criminal
        activity.
2.      A telephone tip can, by itself, create reasonable suspicion justifying an
        investigatory stop where the tip has sufficient indicia of reliability.
          (No. 98-2016—Submitted September 21, 1999—Decided December 22,
                                               1999.)
           APPEAL from the Court of Appeals for Lucas County, No. L-97-1409.
                                  __________________
        {¶ 1} On August 20, 1997, Patrolman Timothy Roberts of the city of
Maumee Police Department received a police dispatch concerning a suspected
crime of drunk driving in progress. The dispatch was based upon a call from an
eyewitness motorist who was following the car at that time. The caller reported the
make, color, and license plate number of the car and described it as “weaving all
over the road.” The caller also identified himself to the police dispatcher, providing
his name and cellular and home phone numbers. The caller continued to follow the
car, describing its activities while Patrolman Roberts attempted to locate it. When
the caller alerted the dispatcher that the car had stopped at a railroad crossing,
                             SUPREME COURT OF OHIO




Roberts pulled into a parking lot opposite the railroad crossing to wait. After the
train passed, Roberts spotted the car and radioed for verification. Approximately
thirty to forty seconds elapsed, during which Roberts did not witness the car either
driving erratically or weaving. After receiving confirmation from the dispatcher,
Roberts stopped the car, questioned the driver, Glenn Weisner, and arrested him for
driving under the influence of alcohol in violation of Maumee Codified Ordinances
333.01(a)(1). Weisner later submitted to breath analysis and was charged with
operating a motor vehicle while having a prohibited concentration of alcohol in
violation of Maumee Codified Ordinances 331.01(a)(3).
       {¶ 2} Weisner moved to suppress the evidence obtained from Roberts’s stop
of his car. At the hearing, the city called only Roberts to testify as to the events of
that night. The trial court considered his testimony sufficient to show that he had
reasonable suspicion that Weisner was driving under the influence and denied
Weisner’s motion to suppress. Weisner then pleaded no contest to violating
Maumee Codified Ordinances 333.01(a)(3) and was sentenced to serve three days
in a drunk-driving intervention program.
       {¶ 3} Weisner appealed the constitutionality of the stop to the court of
appeals. That court reversed the trial court’s decision, holding that the city had
failed to meet its burden of proving that the dispatcher had reasonable suspicion to
issue the dispatch. Maumee v. Weisner (Aug. 21, 1998), Lucas App. No. L-97-
1409, unreported, 

1998 WL 526772

. The cause is now before the court upon the
allowance of a discretionary appeal to decide the constitutionality of a stop based
upon a citizen informant’s telephone tip.
                               __________________
       John B. Arnsby, Maumee Municipal Prosecutor, for appellant.
       Bischoff, Kenney & Niehaus and Stephen M. Sadowski, for appellee.




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                                January Term, 1999




        Betty D. Montgomery, Attorney General, Edward B. Foley, State Solicitor,
and Stephen P. Carney, Associate Solicitor, urging reversal for amicus curiae, Ohio
Attorney General.
        David H. Bodiker, Ohio Public Defender, David Hanson and Siobhan
O’Keeffe, Assistant State Public Defenders, urging affirmance for amicus curiae,
Ohio Public Defender.
                               __________________
        COOK, J.
        {¶ 4} This case involves a Fourth Amendment challenge to an officer’s stop
of a suspected drunk driver. Specifically, we have been asked to determine whether
a citizen informant’s telephone tip may provide the sole basis for an officer’s stop
of a motorist suspected of driving under the influence. We resolve this issue in
favor of the city of Maumee and hold that a telephone tip can, by itself, create
reasonable suspicion justifying an investigative stop where the tip has sufficient
indicia of reliability.
                   I.     Burden of Proof at Suppression Hearing
                                          A
        {¶ 5} As a preliminary matter, we must resolve a debate among Ohio
appellate courts concerning the state’s burden of proof at a suppression hearing.
Despite the focus of the parties’ briefs, it was upon this issue that the appellate
court’s decision turned. Specifically in conflict is whether he state must prove,
when an investigative stop is made in sole reliance upon a police dispatch, that the
information known to the officer issuing the dispatch was sufficient to justify the
stop, or whether the stopping officer’s testimony that he relied upon the dispatch is,
by itself, sufficient. Following State v. Hill (1981), 

3 Ohio App.3d 10

, 3 OBR 10,

443 N.E.2d 198

, the court below held that the state is required to prove that the
information known to the dispatcher was sufficient to raise a reasonable suspicion



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                             SUPREME COURT OF OHIO




of criminal activity. Concluding that the city failed to meet this burden of proof,
the appellate court reversed the trial court’s decision.
       {¶ 6} Generally, at a suppression hearing, the state bears the burden of
proving that a warrantless search or seizure meets Fourth Amendment standards of
reasonableness. 5 LaFave, Search and Seizure (3 Ed.1996), Section 11.2(b). In the
case of an investigative stop, this typically requires evidence that the officer making
the stop was aware of sufficient facts to justify it. Terry v. Ohio (1968), 

392 U.S. 1, 22

, 

88 S.Ct. 1868, 1880

, 

20 L.Ed.2d 889, 906

. But when an investigative stop is
made in sole reliance upon a police dispatch, different considerations apply.
       {¶ 7} A police officer need not always have knowledge of the specific facts
justifying a stop and may rely, therefore, upon a police dispatch or flyer. United
States v. Hensley (1985), 

469 U.S. 221, 231

, 

105 S.Ct. 675, 681

, 

83 L.Ed.2d 604, 613

. This principle is rooted in the notion that “effective law enforcement cannot
be conducted unless police officers can act on directions and information
transmitted by one officer to another and that officers, who must often act swiftly,
cannot be expected to cross-examine their fellow officers about the foundation for
the transmitted information.” 

Id. at 231

, 

105 S.Ct. at 682

, 

83 L.Ed.2d at 614

,
quoting United States v. Robinson (C.A.9, 1976), 

536 F.2d 1298, 1299

. When a
dispatch is involved, therefore, the stopping officer will typically have very little
knowledge of the facts that prompted his fellow officer to issue the dispatch. The
United States Supreme Court has reasoned, then, that the admissibility of the
evidence uncovered during such a stop does not rest upon whether the officers
relying upon a dispatch or flyer “were themselves aware of the specific facts which
led their colleagues to seek their assistance.” It turns instead upon “whether the
officers who issued the flyer” or dispatch possessed reasonable suspicion to make
the stop. (Emphasis sic.) Id. at 231, 

105 S.Ct. at 681

, 

83 L.Ed.2d at 613

 (discussing
and applying Whiteley v. Warden, Wyoming State Penitentiary [1971], 

401 U.S. 560

, 

91 S.Ct. 1031

, 

28 L.Ed.2d 306

, to reasonable suspicion in the context of a


                                           4
                                  January Term, 1999




police flyer). Thus, “[i]f the flyer has been issued in the absence of a reasonable
suspicion, then a stop in the objective reliance upon it violates the Fourth
Amendment.” Hensley, 

469 U.S. at 232

, 

105 S.Ct. at 682

, 

83 L.Ed.2d at 614

.
        {¶ 8} Many courts in Ohio and other jurisdictions have interpreted Hensley
and Whiteley to require proof at the suppression hearing that the officers issuing the
dispatch possessed sufficient knowledge of facts or information to justify the stop,
where the stopping officer himself did not. See State v. 

Hill, supra;

 State v. Ramsey
(Sept. 20, 1990), Franklin App. Nos. 89AP-1298 and 89AP-1299, unreported, 

1990 WL 135867

. Other Ohio courts have held instead that an officer’s statement that
he relied upon a dispatch is, by itself, sufficient to justify the stop, regardless of the
knowledge of the officer issuing the dispatch. See, e.g., State v. Good (1987), 

37 Ohio App.3d 174

, 

525 N.E.2d 527

; State v. Janda (Apr. 14, 1993), Lorain App. No.
92CA005416, unreported, 

1993 WL 120549

. See, also, State v. Penn (Aug. 2,
1994), Franklin App. No. 93AP-953, unreported, 

1994 WL 409758

.
        {¶ 9} We believe the latter approach is inconsistent with United States
Supreme Court precedent and fails to adequately protect the citizen’s Fourth
Amendment rights. Accordingly, we clarify here that where an officer making an
investigative stop relies solely upon a dispatch, the state must demonstrate at a
suppression hearing that the facts precipitating the dispatch justified a reasonable
suspicion of criminal activity.
                                            B
        {¶ 10} Given that the state must present evidence of the facts known to the
dispatcher in these situations, the next question concerns the type of evidence that
may be used for this purpose. The appellate court below concluded that the city’s
failure to offer the testimony of either the dispatcher or the citizen informant
rendered its evidence insufficient. In this assessment of the sufficiency of the
evidence, however, the court, without explanation, ignored Roberts’s testimony
about the facts relayed from the caller to the dispatcher. While a stopping officer


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                                 SUPREME COURT OF OHIO




in a dispatch situation will typically be unaware of the facts known to the
dispatcher, this case is different. Here, Roberts testified that the dispatcher relayed
to him the facts precipitating the dispatch.1
        {¶ 11} We believe that the appellate court should have considered Roberts’s
testimony in assessing whether the facts known to the dispatcher were sufficient to
justify the stop. First, we note that the hearsay rule does not preclude courts’
consideration of this evidence, because “[a]t a suppression hearing, the court may
rely on hearsay and other evidence, even though that evidence would not be
admissible at trial.” United States v. Raddatz (1980), 

447 U.S. 667, 679

, 

100 S.Ct. 2406, 2414

, 

65 L.Ed.2d 424, 425

. We further note that no one argued at any point
in the proceedings that the officer’s testimony was unreliable. Roberts’s testimony
regarding the information that the dispatcher knew, therefore, should have been
analyzed to determine whether the burden was met.
        {¶ 12} Given that this evidence should have been considered, we turn now
to our analysis of the facts known to the dispatcher. Specifically, we must
determine whether those facts, which came solely from a citizen informant’s tip,
were sufficient to create a reasonable suspicion justifying the stop.
                               II.      Reasonable Suspicion
        {¶ 13} The proscriptions of the Fourth Amendment impose a standard of
reasonableness upon the exercise of discretion by government officials. Delaware
v. Prouse (1979), 

440 U.S. 648, 653-654

, 

99 S.Ct. 1391, 1396

, 

59 L.Ed.2d 660, 667

. “Thus, the permissibility of a particular law enforcement practice is judged
by balancing its intrusion on the individual’s Fourth Amendment interests against


1. Roberts’s testimony suggests that he may have learned of some of the facts after the stop was
completed. Were it clear that he possessed all the information known to the dispatcher about the
caller at the time he made the stop, we could have analyzed Roberts’s own reasonable suspicion,
without considering the dispatcher. We require evidence of the dispatcher’s knowledge not as an
additional burden upon the state, but only to allow the stopping officer to rely upon the dispatch
without his having to cross-examine the dispatcher as to his basis of knowledge. See United States
v. Hensley and United States v. 

Robinson, supra.

                                                6
                                January Term, 1999




its promotion of legitimate governmental interests.” Id. at 654, 

99 S.Ct. at 1396

,

59 L.Ed.2d at 667-668

.        To justify a particular intrusion, the officer must
demonstrate “specific and articulable facts which, taken together with rational
inferences from those facts, reasonably warrant that intrusion.” Terry v. Ohio, 

392 U.S. at 21

, 

88 S.Ct. at 1880

, 

20 L.Ed.2d at 906

.
       {¶ 14} The United States Supreme Court has interpreted the Fourth
Amendment to permit police stops of motorists in order to investigate a reasonable
suspicion of criminal activity. 

Id. at 22

, 

88 S.Ct. at 1880

, 

20 L.Ed.2d at 906-907

.
The reasonable suspicion necessary for such a stop, however, eludes precise
definition. Rather than involving a strict, inflexible standard, its determination
involves a consideration of “the totality of the circumstances.” United States v.
Cortez (1981), 

449 U.S. 411, 417

, 

101 S.Ct. 690, 695

, 

66 L.Ed.2d 621, 628-629

.
Under this analysis, “both the content of information possessed by police and its
degree of reliability” are relevant to the court’s determination. Alabama v. White
(1990), 

496 U.S. 325, 330

, 

110 S.Ct. 2412, 2416

, 

110 L.Ed.2d 301, 309

.
       {¶ 15} Where, as here, the information possessed by the police before the
stop stems solely from an informant’s tip, the determination of reasonable suspicion
will be limited to an examination of the weight and reliability due that tip. See 

id.

The appropriate analysis, then, is whether the tip itself has sufficient indicia of
reliability to justify the investigative stop. Factors considered “ ‘highly relevant in
determining the value of [the informant’s] report’ ” are the informant’s veracity,
reliability, and basis of knowledge. 

Id. at 328

, 

110 S.Ct. at 2415

, 

110 L.Ed.2d at 308

, quoting Illinois v. Gates (1983), 

462 U.S. 213, 230

, 

103 S.Ct. 2317, 2328

, 

76 L.Ed.2d 527, 543

.
       {¶ 16} To assess the existence of these factors, it is useful to categorize
informants based upon their typical characteristics. Although the distinctions
between these categories are somewhat blurred, courts have generally identified
three classes of informants: the anonymous informant, the known informant


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(someone from the criminal world who has provided previous reliable tips), and the
identified citizen informant. While the United States Supreme Court discourages
conclusory analysis based solely upon these categories, insisting instead upon a
totality of the circumstances review, it has acknowledged their relevance to an
informant’s reliability. The court has observed, for example, that an anonymous
informant is comparatively unreliable and his tip, therefore, will generally require
independent police corroboration. Alabama v. White, 

496 U.S. at 329

, 

110 S.Ct. at 2415

, 

110 L.Ed.2d at 308

. The court has further suggested that an identified
citizen informant may be highly reliable and, therefore, a strong showing as to the
other indicia of reliability may be unnecessary: “[I]f an unquestionably honest
citizen comes forward with a report of criminal activity—which if fabricated would
subject him to criminal liability—we have found rigorous scrutiny of the basis of
his knowledge unnecessary.” Illinois v. Gates, 

462 U.S. at 233-234

, 

103 S.Ct. at 2329-2330

, 

76 L.Ed.2d at 545

.
       {¶ 17} In light of these principles, federal courts have routinely credited the
identified citizen informant with greater reliability. In United States v. Pasquarille
(C.A.6, 1994), 

20 F.3d 682, 689

, for instance, the Sixth Circuit presumed the report
of a citizen informant to be reliable because it was based on firsthand observations
as opposed to “ ‘idle rumor or irresponsible conjecture,’ ” quoting United States v.
Phillips (C.A.5, 1984), 

727 F.2d 392, 397

. Likewise, the Tenth Circuit has held that
the statement of an ordinary citizen witness is entitled to more credence than that
of a known informant. “ ‘Courts are much more concerned with veracity when the
source of the information is an informant from the criminal milieu rather than an
average     citizen    *     *     *     in    the     position    of     a     crime
* * * witness.’ ” Easton v. Boulder (C.A.10, 1985), 

776 F.2d 1441

, 1449, quoting
LaFave, Search and Seizure (1978) 586-587. See, also, Edwards v. Cabrera (C.A.7,
1995), 

58 F.3d 290, 294

.



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                                January Term, 1999




       {¶ 18} Many Ohio appellate courts have also accorded the identified citizen
witness higher credibility. In fact, several have used this principle to uphold a
telephone tip made in fact situations nearly mirroring this one. In State v. Loop
(Mar. 14, 1994), Scioto App. No. 93CA2153, unreported, 

1994 WL 88041

, for
instance, the court held that a telephone call from a citizen stating that a motorist
might be having a seizure was sufficient to justify an investigative stop that
produced    evidence    of   drunken     driving.     The    court   reasoned     that
“ ‘[i]nformation from an ordinary citizen who has personally observed what appears
to be criminal conduct carries with it indicia of reliability and is presumed to be
reliable.’ ” Id. at 5, quoting State v. Carstensen (Dec. 18, 1991), Miami App. No.
91-CA-13, unreported, at *4, 

1991 WL 270665

. The Carstensen court found a stop
based upon a 911 call describing a drunk driver sufficiently justified, although the
informant there was unidentified. See, also, Fairborn v. Adamson (Nov. 17, 1987),
Greene App. No. 87-CA-13, unreported, at 4-5, 

1987 WL 20264

; State v. Jackson
(Mar. 4, 1999), Montgomery App. No. 17226, unreported, at *5, 

1999 WL 115010

,
observing generally that “ ‘a tip from an identified citizen informant who is a victim
or witnesses a crime is presumed reliable, particularly if the citizen relates his or
her basis of knowledge,’ ” quoting Centerville v. Gress (June 19, 1998),
Montgomery App. No. 16899, unreported, at *4-5, 

1998 WL 321014

.
       {¶ 19} Given the greater degree of reliability typically accorded the
identified informant, the central issue disputed between the parties is whether the
informant here should be considered identified or anonymous. Because Weisner
characterizes the motorist as an anonymous informant, he contends that additional
corroborating facts from the officer would have been necessary to create a
reasonable suspicion. Although the motorist identified himself, Weisner argues
that the identification easily could have been fabricated and therefore adds nothing
to his reliability. The city of Maumee and amicus curiae Ohio Attorney General
urge that the information provided by the citizen informant was sufficient to


                                          9
                              SUPREME COURT OF OHIO




identify him and therefore to accord him greater reliability. Identified citizen
witnesses, they insist, are presumptively reliable because of their motivation, their
basis of knowledge, and their identification. Thus, the issue becomes whether the
information provided by the informant was adequate to consider him identified.
        {¶ 20} Courts have been lenient in their assessment of the type and amount
of information needed to identify a particular informant. Many courts have found,
for instance, that identification of the informant’s occupation alone is sufficient. In
United States v. 

Pasquarille, supra,

 the court concluded that, although the
informant’s name was unknown, information that he was a transporter of prisoners
was enough to remove him from the anonymous informant category. Likewise, in
Edwards v. 

Cabrera, supra,

 the court was satisfied with the knowledge that the
informant was a bus driver whose identity was ascertainable. See, also, State v.
Loop, supra. Furthermore, at least one court has considered simple face-to-face
contact to be enough. In State v. Ramey (1998), 

129 Ohio App.3d 409

, 

717 N.E.2d 1153

, the court held that an unnamed informant who flagged down an officer to
provide information concerning a suspected drunk driver was in no way
“anonymous”:      “There is nothing even remotely anonymous, clandestine, or
surreptitious about a citizen stopping a police officer on the street to report criminal
activity.” 

Id. at 416

, 

717 N.E.2d at 1158

.
        {¶ 21} Viewing the information here in this context, we are convinced that
it was sufficient to identify the informant and remove him from the anonymous
informant category.     It is undisputed that the informant provided identifying
information including his name, his cellular phone number, and his home phone
number. We are unpersuaded by Weisner’s argument that the identification is
worthless because it could have been fabricated. The caller’s continued contact
with the police dispatcher throughout the incident sharply reduces that possibility.
In fact, we infer from his willingness to continue assisting Patrolman Roberts that
he may have considered face-to-face police contact a possibility. With that in mind,


                                          10
                                January Term, 1999




he would have been unlikely to offer a false report because of the potential
consequences. We believe that greater credibility may be due an informant such as
this who initiates and permits extended police contact rather than one who phones
in a tip and retreats from any further police interaction. Accordingly, we consider
the citizen informant to have identified himself sufficiently to accord him greater
reliability than an anonymous informant.
       {¶ 22} Having resolved this issue, we emphasize that our categorization of
the informant as an identified citizen informant does not itself determine the
outcome of this case. Instead it is one element of our totality of the circumstances
review of this informant’s tip, weighing in favor of the informant’s reliability and
veracity.   Continuing our review, we believe that the informant’s basis of
knowledge also furthers his credibility. Typically, a personal observation by an
informant is due greater reliability than a secondhand description. Gates, 

462 U.S. at 233-234

, 

103 S.Ct. at 2329-2330

, 

76 L.Ed.2d at 545

. Here, the citizen’s tip
constituted an eyewitness account of the crime. His version of that night was not
mere rumor or speculation—it was a firsthand report of the events as they
happened. Also significant is the fact that the tip was an exact relay of the
circumstances as they were occurring. Immediately upon witnessing the events,
the citizen described them to the dispatcher.        This immediacy lends further
credibility to the accuracy of the facts being relayed, as it avoids reliance upon the
informant’s memory.
       {¶ 23} We also believe that the informant’s motivation supports the
reliability of his tip. According to the evidence, the informant reported that Weisner
was weaving all over the road. He made this report from the perspective of a
motorist sharing the road with an another motorist driving erratically. We can
reasonably infer from these circumstances that he considered Weisner a threat to
him personally as well as to other motorists and that he was motivated, therefore,



                                         11
                             SUPREME COURT OF OHIO




not by dishonest and questionable goals, but by his desire to eliminate a risk to the
public’s safety.
       {¶ 24} Taken together, these factors persuade us that the informant’s tip is
trustworthy and due significant weight. The informant was an identified citizen who
based his knowledge of the facts he described upon his own observations as the
events occurred. As a result, his tip merits a high degree of credibility and value,
rendering it sufficient to withstand the Fourth Amendment challenge without
independent police corroboration. Accordingly, the dispatch based upon this tip
was issued on sufficient facts to justify Patrolman Roberts’s investigative stop.
       {¶ 25} The judgment of the court of appeals is reversed.
                                                                Judgment reversed.
       DOUGLAS, PFEIFER and LUNDBERG STRATTON, JJ., concur.
       MOYER, C.J., BOWMAN and F.E. SWEENEY, JJ., dissent.
       DONNA BOWMAN, J., of the Tenth Appellate District, sitting for RESNICK, J.
                              __________________
       FRANCIS E. SWEENEY, Sr., J., dissenting.
       {¶ 26} Respectfully, I dissent. In my opinion, a telephone caller’s
unverified report of erratic driving does not, standing alone, provide reasonable
suspicion to warrant an investigative traffic stop.      It is imperative that law
enforcement officers possess a reasonable and articulable suspicion to warrant an
investigative stop of a vehicle. While deterrence of drunk driving remains of
utmost importance, this policy needs to be carefully balanced against an
individual’s constitutional right to be free from unreasonable searches and seizures.
An individual’s Fourth Amendment right should not be forfeited simply to promote
this public policy.
       {¶ 27} The cornerstone of the Fourth Amendment is the right of the people
to be free from unreasonable searches and seizures. Terry v. Ohio (1968), 

392 U.S. 1

, 

88 S.Ct. 1868

, 

20 L.Ed.2d 889

. In the context of an investigatory stop of an


                                         12
                                January Term, 1999




automobile, the stopping of the car and detaining its occupants constitute a seizure.
Delaware v. Prouse (1979), 

440 U.S. 648, 653

, 

99 S.Ct. 1391, 1396

, 

59 L.Ed.2d 660, 667

. However, the Fourth Amendment is not violated if the officer has
reasonable suspicion, based on articulable facts, that the person stopped has
engaged, is engaged, or is about to engage in criminal activity. Terry v. Ohio, 

392 U.S. at 21

, 

88 S.Ct. at 1880

, 

20 L.Ed.2d at 906

; Delaware v. Prouse, 

440 U.S. at 653-655

, 

99 S.Ct. at 1396-1397

, 

59 L.Ed.2d at 667-668

.
       {¶ 28} In forming reasonable suspicion, a police officer may rely on outside
information provided directly to him, such as tips from informants, or on
information relayed to him via a flyer or radio dispatch. Adams v. Williams (1972),

407 U.S. 143

, 

92 S.Ct. 1921

, 

32 L.Ed.2d 612

; United States v. Hensley (1985), 

469 U.S. 221

, 

105 S.Ct. 675

, 

83 L.Ed.2d 604

. However, where an informant’s tip is
relied upon, the informant’s veracity and reliability and his basis for knowledge
must be assessed under the totality of the circumstances to determine whether the
tip establishes reasonable suspicion. Illinois v. Gates (1983), 

462 U.S. 213

, 

103 S.Ct. 2317

, 

76 L.Ed.2d 527

. Where the tip is from an anonymous caller, the tip,
standing alone, will rarely provide the reasonable suspicion necessary for an
investigative stop. Alabama v. White (1990), 

496 U.S. 325

, 

110 S.Ct. 2412

, 

110 L.Ed.2d 301

. However, if corroborated by independent police work, that tip may
be a sufficient basis for the stop. 

Id.

 In contrast, where a tip is received from a
known informant and the details of the tip are easily verifiable, that tip has greater
indicia of reliability. 

Adams, supra.

 Regardless of whether the informant is known
or anonymous, each case must be evaluated under the totality of the circumstances.
       {¶ 29} In this case, the arresting officer relied solely on information relayed
to him from the radio dispatch, which, in turn, was based on information from an
unverified cellular telephone caller. The majority justifies the stop by holding that
the tip was reliable because it was made by a citizen-informant who identified
himself sufficiently to police, personally observed erratic driving, and then relayed


                                         13
                             SUPREME COURT OF OHIO




the information to police as it was happening. The majority further concludes that
the tip was reliable because it can be inferred that the informant had a strong
motivation to report the erratic driving, i.e., to promote the safety of the roadway.
From these facts, the majority concludes that the informant’s tip was highly credible
and can withstand scrutiny under the Fourth Amendment.
       {¶ 30} The fact that the informant provided the dispatching officer with his
name and phone number and a brief description of the vehicle and its location does
not, in and of itself, make him a reliable source of information. See State v. Ramsey
(Sept. 20, 1990), Franklin App. Nos. 89AP-1298 and 89AP-1299, unreported, 

1990 WL 135867

. In fact, since the caller’s identity was never verified, the informant is
more akin to an anonymous caller. As aptly noted by the Washington Supreme
Court, “[t]he reliability of an anonymous telephone informant is not significantly
different from the reliability of a named but unknown telephone informant. Such
an informant could easily fabricate an alias, and thereby remain, like an anonymous
informant, unidentifiable.” State v. Sieler (1980), 

95 Wash.2d 43, 48

, 

621 P.2d 1272, 1275

. It is therefore illogical to presume that an unverified citizen’s report
of erratic driving is inherently reliable. Cf. United States v. Pasquarille (C.A.6,
1994), 

20 F.3d 682, 689

.       Nor should the supposed motivation behind an
informant’s tip be used to test the reliability of the tip, particularly where the
informant was never contacted by the arresting officer or called to the witness stand
to explain his reasons for providing police with this information.
       {¶ 31} Had the veracity and reliability of the informant’s tip been
corroborated, or had the officer followed appellee for a longer time and himself
witnessed erratic driving, then there would indeed have been sufficient indicia of
reliability to make the stop. However, that was not done. Instead, the officer who
made the stop relied solely on the dispatch report and then followed appellee’s car
for approximately thirty to forty seconds. In that short time, the officer admits, he



                                         14
                               January Term, 1999




did not observe any weaving or any other erratic driving to lead him to believe that
appellee was committing a crime. Nevertheless, he stopped appellee’s vehicle.
       {¶ 32} Under the totality of the circumstances, I believe that the arresting
officer lacked reasonable and articulable suspicion to stop appellee’s vehicle, and
consequently violated appellee’s constitutional rights. Since I believe that the
police lacked justification to stop appellee’s vehicle, in my opinion appellee’s
Fourth Amendment rights were violated. Accordingly, I would affirm the judgment
of the court of appeals.
       MOYER, C.J., and BOWMAN, J., concur in the foregoing dissenting opinion.
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