Police Can’t Stop Motorist on Unaided Visual Estimation Only

State v. Miller, 5^th District, 12-29-12

Anita Jo Miller almost got a nice Christmas gift. She did win her appeal in the 5^th District Court of Appeals in a DUI / OVI case arising out of Fairfield County. But, her case wasn’t handed down until December 26, 2012. For the record, we are always happy to see decisions out of Lancaster get reversed in favor of the accused. They are few and far between. This case is no exception.

It seems as though Ms. Miller has a car with loud pipes. Especially when she was gunning the engine at a red light. About a block away, two Lancaster police officers heard her vehicle’s engine “revving”. When the light turned green, one of the officers guestimated the speed to be greater than the posted 25 mph. This officer used his flashlight to make a traffic stop of Ms. Miller. Eventually, Ms. Miller was arrested for OVI and No Ops. Her lawyer filed a Motion to Suppress, got a hearing, held a hearing, and lost the hearing. Par for the course on Route 33.

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The trial court found the stop of her vehicle to be constitutional (“suspicious activity”). The prosecutor was unable to point to any statute violated by the defendant. Further, officers in Ohio are statutorily prohibited from arresting or even charging a driver for speeding based upon an “unaided visual estimation of the speed of the vehicle. R.C. 4511.091(C)(1) has now been construed by at least one appellate court to stand for the proposition that permitting an officer to stop a vehicle based upon an unaided visual estimation of speed vehicle is prohibited. Specifically, it is now classified as merely an “inarticulate hunch” of a moving violation that is expressly prohibited by statute. Moreoever, the 5^th District shot down the state’s fail safe argument that the officer had a “subjective good faith” belief that the stop was constitutional.

One of my favorite quotes about “subjective good faith” exceptions to the 4^th Amendment turns 49 years old in 2013 — If subjective good faith alone were

the test, the protections of the Fourth Amendment would evaporate, and the people would be ‘secure in their persons, houses, papers and effects,’ only in the discretion of the police.'” Beck v. Ohio, 379 U.S. 89 @ 97 (1964).