COLUMBUS — The legal authority of a shouted tip to a state trooper about an impaired driver — “That lady is drunk!” — is before the Ohio Supreme Court in a question over constitutional protections from illegal search and seizure.
At issue is the 2017 arrest of a woman in Hamilton County whose blood-alcohol levels tested at more than twice the legal limit. Lower courts sided with the woman’s arguments that the tip, from an unidentified man, was anonymous and didn’t give the trooper cause to investigate.
Prosecutors say the trooper was justified in stopping the woman, arguing that the Department of Homeland Security’s directive, “If you see something, say something,” applies to stopping drunken drivers as it does to terrorist attacks.
State Patrol Sgt. Jacques Illanz “did exactly what we want and expect police to do,” Philip Cummings, an assistant Hamilton County prosecutor, argued in an August court filing. “And indeed his quick action may have saved lives.”
Court records show that Illanz was finishing up a traffic crash report at a gas station in southwestern Ohio on Nov. 11, 2017, when a man walked out of the station and shouted at the trooper: “Hey, you need to stop that vehicle. That lady is drunk!”
The trooper stopped the driver, Sherry Tidwell, as she backed out of her parking space. He said he smelled alcohol in the woman’s car, noted that her eyes were bloodshot and glassy and her speech was slurred, according to court records. The woman denied drinking.
Tidwell had a blood-alcohol level of 0.213% following a test by a Hamilton County sheriff’s deputy who arrived at the scene, according to Supreme Court filings. The legal limit in Ohio is 0.08%. The tipster left the scene and was never identified.
Tidwell was charged with driving under the influence but successfully argued to lower courts that the stop was unconstitutional because it was based on “an anonymous, unreliable tip.”
Even when the trooper did stop the woman as she backed out of her parking space, his contention that her “blank stare” justified stopping her was misplaced, said defense attorney Tad Brittingham in a September court filing.
“If a blank stare is indicative of intoxication, then attorneys are often presumptively intoxicated while attending continuing legal education events statewide,” Brittingham said in the filing. “Students are presumptively intoxicated during algebra class.”
He also argued that the “That lady is drunk!” tip amounts to hearsay, since the man was relying on information told to him by the store clerk, Brittingham said.
Hamilton County appealed lower court rulings siding with Tidwell to the state Supreme Court, which held oral arguments Tuesday. A decision isn’t expected for weeks. Justices appeared skeptical of Brittingham’s arguments that the shouted tip wasn’t enough for the trooper to act on.
“Do you think it would have been reasonable to allow this person to pull out into traffic after the officer had been told that that person was driving drunk?” Justice Patrick DeWine asked Brittingham. Brittingham responded that it would have been reasonable for the witness not to leave the scene.
“Don’t we want to discourage people standing idly by and not reporting something suspicious?” Justice Melody Stewart asked a few minutes later.
Brittingham replied that there was no evidence the tipster “actually saw or observed or witnessed anything,” and instead relied on info relayed from the store clerk.
Prosecutors argue that simple face-to-face contact between an unidentified citizen and an officer is enough to elevate the tipster from an anonymous source to “a citizen informant” with a high degree of credibility.
The state Public Defender’s Office filed a motion siding with the driver, while the Ohio Attorney General’s Office is asking the high court to allow the tip to be used.