The tip contained sufficient indicia of reliability from an identified citizen informant that provided the officer with reasonable, articulable suspicion that criminal activity may have been afoot, and Rutherford, as the driver of the car, was the person the witness had described.
State v. Rutherford
2020 – Ohio – 1309
Second District Appellate Court
April 3, 2020
Montgomery County, Ohio
Huber Heights Police Officer Mike Winterbotham testified that he received a 911 call on June 25, 2018, at approximately 1:30 p.m. According to the information received and recorded from dispatch, a Burger King customer reported to the 911 center that a woman was “shooting up and out of it” in a vehicle parked in the business’s parking lot. Burger King is located at 7607 Old Troy Pike, Huber Heights, Ohio.
Officer Winterbotham testified that he believed the information he received was that the woman was “shooting up.” Because Officer Winterbotham was in close proximity, he immediately responded.
Officer Winterbotham had been informed that the caller was a female who wished to remain anonymous. The dispatch center recorded the caller’s phone number. Later that day, Officer Winterbotham obtained the witness’s identity from the dispatcher in order to learn more about her observations in the parking lot. The comments received by 911 dispatch and relayed to Officer Winterbotham were also recorded and admitted as an exhibit at the hearing.
At the time of this incident, Officer Winterbotham had served as a police officer for about five and a half years and had investigated several hundred incidents concerning the illegal use and/or possession of illegal narcotics. Officer Winterbotham explained that based on his training and experience, “shooting up” is commonly associated with using a hypodermic needle to inject narcotics into one’s arm.
The anonymous caller described the person involved as a white woman who was the sole occupant of the vehicle. The suspect was further described as a female having red hair and a cast or brace on her arm. In addition, the car was described as a silver Dodge Avenger with a specific license number.
While Officer Winterbotham responded to the dispatch, the dispatch center continued to relay updates about the vehicle’s location as they were received from the caller. A few moments after receiving the dispatch, Officer Winterbotham approached the Burger King and located the silver Dodge Charger as it moved northbound on Old Troy Pike. Officer Winterbotham then pulled his vehicle behind the Dodge Charger and conducted a traffic stop on Old Troy Pike. In response, the vehicle turned into a McDonald’s restaurant parking lot at the corner of Old Troy Pike and Merily Way and stopped. This location was less than one-quarter of a mile from the Burger King.
Ms. Sheila Rutherford was originally at Burger King, at 7607 Old Troy Pike, Huber Heights, Ohio, shooting up but when Officer Mike Winterbotham arrived he observed her traveling northbound and stopped her at the McDonalds. at 5562 Merily Way.
According to Officer Winterbotham, the stop was based on the amount of detail provided from dispatch and the public safety issue that the female could be driving under the influence of narcotics. As Officer Winterbotham walked toward the car, he observed a female later identified as Ms. Sheila Rutherford who matched the description given by the witness, in that she was the sole occupant, was a white female with red hair, and had a brace on her arm. After the stop, contraband was recovered from the vehicle. Ms. Rutherford was then arrested and charged with: Aggravated possession of drugs and Possession of drug abuse instruments.
Ms. Rutherford filed a Motion to Suppress which was overturned by the trial court and she appealed to the Second District Appellate Court which held “[W]e conclude that the investigative stop was lawful under the circumstances of this case. The tip contained sufficient indicia of reliability from an identified citizen informant that provided the officer with reasonable, articulable suspicion that criminal activity may have been afoot, and Rutherford, as the driver of the car, was the person the witness had described.”.
The following paragraph excerpted from this case is some of the best legal analysis on known versus anonymous citizen tipster of which I am aware. The language provides the framework for law enforcement to evaluate callers and the ability to establish Reasonable Suspicion based on a citizen’s call.
The Second District Appellate Court evaluated the caller who did not leave her name but whose phone number was obtained in the 911 center due to caller I.D.; “A tipster who leaves a name and phone number “ ‘is often described as a citizen informant because these tips have characteristics different from those provided by professional police informants or anonymous informants. The reliability of police informants is often established by their “track-record” with the police prior to the tip in question. As a citizen-informant may have never reported a crime before, this analysis is generally inapplicable. Citizen-informants also rarely have access to inside information about a suspect and usually simply report their observations.’ ” (Emphasis sic.) Id. at quoting State v. Ramsey, 10th Dist. Franklin No. 89AP-1298, 1990 WL 135867, *4 (Sept. 20, 1990). “Some factors that significantly support the reliability of an anonymous tip include: ‘eyewitness knowledge’; a ‘contemporaneous report’; the fact that an event is startling; and use of the 911 emergency system, which allows for tracing of calls.” Id. at quoting Navarette v. California, 572 U.S. 393, 399-401 (2014). Here, the factors all support reliability. As noted, the caller was an eyewitness to Rutherford “shooting up” in the described vehicle while in a fast food parking lot and called contemporaneously as the incident happened. Moreover, witnessing an individual “shooting up” in these circumstances would be a startling event. And finally, the caller expressed a desire to be anonymous to the officers responding, but provided her contact information to the dispatch center. She also used the 911 system, which recorded her phone number. In light of this technology, “a reasonable officer could conclude that a false tipster would think twice before using such a system.” Navarette at 400. In the case before us, the trial court relied in part on Navarette, in finding that the tip’s detail contained sufficient indicia of reliability to justify the stop. Applying these principles, the court found the 911 call reliable because the caller had first-hand knowledge, the incident was recent, and the caller gave the original location and updated information where Rutherford and the vehicle were located. We agree. Finally, the caller was not truly anonymous because either the dispatcher or the 911 system recorded the caller’s phone number which is recorded in the dispatch log. This allowed Officer Winterbotham to contact the caller later in the day after Rutherford had been stopped.”
This case was issued on April 3, 2020 by the Second District Court of Appeals which is binding in the following counties: Champaign, Clark, Darke, Greene, Miami and Montgomery.
- Officers should emulate Officer Mike Winterbotham who clearly knew the difference between a known and unknown caller and the legal authority provided by each. He took the time to call the ‘anonymous’ caller back to obtain additional information. If there had been any doubt as to whether the information would remain from an ‘anonymous’ source, Officer Winterbotham’s call back increased the information to the level of Reasonable Suspicion leading to the stop at McDonalds.
- What remains unresolved is whether caller I.D. in dispatch can establish a caller as a ‘known’ caller if he does not want to leave his name or ask to remain anonymous. This case was issued by the Second District Appellate Court, so it is only binding in the Second District. But this case also had the variable, where Officer Winterbotham called the caller back to obtain additional information. What if he had called the number and it went to voicemail? What if he had reached the caller and the caller demanded to remain anonymous? The U.S. Supreme Court has vacillated on their analysis of anonymous callers. If you would like to learn more on anonymous callers see Supreme Court Fence Sitting or known tipsters see Glenn had Enough BudWeis(N)er for a .185 BAC But Was the Traffic Stop Lawful?
- This case also underscores the critical importance of call takers, dispatchers and assuring they are properly trained. Clearly some callers will refuse to provide their name and phone number. But each time the call taker/dispatcher should ask the caller for that information. If the caller refused that specifically should be documented on the Computer Aided Dispatch information. Call takers/dispatchers are officer’s life-lines and there never can be enough recognition provided for this most valuable and under-recognized teammates.
Does your agency train on the Anonymous Tips?
Don’t fail your training.
Don’t let your training fail you!
Be safe, smart and Objectively Reasonable!
Robert H. Meader Esq.