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Smith v. State6/1/2005
Mandate Issued: 09/29/2005
REVERSED AND REMANDED
Two City of Edmond police officers were suspicious of Plaintiff Lindsey Smith's possible criminal activity and contacted fellow officer Harwell to follow her, stop her when he could, and investigate. He followed her vehicle and when she made a right turn without using her turn signal, in violation of Edmond city ordinance, he stopped her vehicle. He issued her a warning, returned her license to her, but before releasing her, asked permission to search her car. She then told him she had beer in the car. He conducted a field sobriety test, and arrested her for DUI. Her driving privileges were revoked and the revocation was affirmed after an administrative hearing. She appealed to District Court which reversed the revocation after Officer Harwell's testimony, on the grounds that DPS presented insufficient evidence that reasonable suspicion existed for the traffic stop and that insufficient evidence of a traffic violation was presented. We find that there was sufficient evidence for reasonable suspicion, and although City's ordinance is preempted by state law, it was presumptively a valid ordinance at the time of the stop. Therefore, we reverse the trial court's order setting aside the license revocation.
At around 3:00 a.m. December 31, 2003, two Edmond policemen observed Smith sitting in her car in a strip mall, next to a car occupied by someone they suspected of being a drug dealer. The two officers called Officer Harwell and asked him to follow Smith. He followed Smith and when she failed to signal when making a right turn in a residential area, in violation of Edmond Ordinance 10.32.060, he stopped her car. He found she had a valid driver's license and current insurance, and was twenty years old. He issued her a warning for failure to signal and told her she was free to go. Then he asked if she had anything illegal in her car. He thought she was acting nervous and he could tell her eyes were bloodshot and watery, but he could not smell any alcohol because of the wind. She stated that she did not have anything illegal in the car, but gave her consent to a search. Before he started the search, she confessed to having beer in the car. He then smelled beer on her breath and began conducting field sobriety tests. She stated she had consumed two beers. He arrested her and took her to the police station for booking.
On cross-examination, the officer stated that Smith's failure to signal did not interfere with the operation of officer's vehicle or anyone else's vehicle. It did not cause him to slow up or stop abruptly and did not effect his driving at all. He was behind her and there were no other vehicles around. He did not have to know which way she was going to turn at the intersection. It did not matter to him. He did not notice anything about her driving while he was following her that made him believe she was under the influence.
After ascertaining that DPS had no other witnesses concerning the stop and arrest, the trial court sustained the appeal and set aside the revocation.
The problem in this case comes not with following Smith's car. The officer "... was simply making a reasonable inquiry of a person brought to his knowledge under circumstances suggesting a crime had been or was about to be committed." Mike v. State, 1988 OK CR 205, 6, 761 P.2d 911, 913. In Mike, the manager of a doughnut shop reported that after she sold out of doughnuts and was closing shop, a man appeared demanding doughnuts. After an argument, he staggered back to his car and drove away in the wrong lane at a high rate of speed. Because of that and because he smelled strongly of alcohol, the shop manager
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