An Ear For Crime: Ohio Appellate Court Rules that Officer Cannot Issue Speeding Tickets Based on Sound Alone

Ohio officer Ken Roth doesn’t need no stinking radar guns, he has speed-calibrated hearing. Well, he did until the Ohio Court of Appeals ruled that a motorist cannot be convicted based solely on what Roth said he “heard” as speeding.

Roth stopped the car of Daniel Freitag in the village of West Salem while the latter was driving with his wife Jane. Roth claimed that his radar clocked Freitag at 42 MPH in a 35 zone. Roth also claimed he could hear Freitag’s 2006 Lincoln Navigator speeding.

Here are the facts laid out by the court:

Ptl. Roth testified that he heard Freitag’s vehicle before he saw it. He further testified that he first observed Freitag’s vehicle when it was approximately 100-150 yards behind him. He testified that he observed the vehicle only through his rear-view and side-view mirrors until it passed alongside his patrol car. Although he testified that there were other vehicles on the roadway, including one approaching from the same direction as Freitag’s, Ptl. Roth later testified that he would not have been able to hear any other vehicles besides Freitag’s.

Ptl. Roth testified that he learned how to audibly determine if a vehicle was speeding from 150 yards away through his experience and training with an unidentified field training officer when he first began working in the field seven years ago. He later admitted that once he began to follow Freitag’s vehicle, he had no way of measuring speed unless he was driving in the same direction behind the vehicle because his radar does not work while his patrol car is moving.

Freitag testified that he was driving a 2006 Lincoln Navigator sport utility vehicle that evening. He testified that Ptl. Roth told him that he pulled him over for driving left of the center line and for speeding. Freitag testified that it was “completely impossible” that he was speeding because he is aware that the police constantly patrol U.S. 42. He further testified that he assumes his sport utility vehicle makes more noise than other vehicles.

Jane Freitag testified that she was sitting in the back seat behind her husband as he was driving through the Village. She testified that Freitag was driving “normally” and that he was not speeding because he never exceeds the speed limit in West Salem or anywhere else. Mrs. Freitag testified that, while she could have seen the vehicle’s speedometer from where she was sitting, she did not look at it while her husband was driving.

The state failed to lay the foundation for the type of radar used. The trial judge simply took judicial notice that it was a “Genesis Radar”, but could not determine the model. The appellate court found it was improperly introduced as evidence in a prior appeal.

Then it got really weird. Roth insisted that sound alone was sufficient to confirm speeding: “As it approached I could hear the vehicle on the roadway which based on my training and experience it is consistent with a vehicle that was in excess of the posted speed limit.” What is equally bizarre is that the trial judge agreed.

Judge Donna J. Carr raised serious questions over the logic if not the sanity behind such a claim:

The officer testified that he was trained to audibly determine whether a vehicle is speeding; however, he did not explain how he was trained to do so. Moreover, the officer testified that he “audibly heard the speeding, not the speed of the vehicle.” It is simply incredible, in the absence of reliable scientific, technical, or other specialized information, to believe that one could hear an unidentified vehicle “speeding” without being able to determine the actual speed of the vehicle. The officer offered no testimony regarding how he might have been trained to audibly distinguish various speeds, let alone to distinguish the speeds of various makes and models of vehicles. In addition, although he admitted that there was another vehicle on the roadway and traveling the same direction as Freitag’s at the time, the officer did not explain why he could hear and distinguish Freitag’s vehicle, while he could not even hear the other traffic.

The panel held “[t]he weight of the evidence does not support the conclusion that Freitag was exceeding the posted speed limit, specifically because Patrolman Roth’s testimony that he audibly and visibly determined that Freitag was speeding is not credible… It is simply incredible, in the absence of reliable scientific, technical, or other specialized information, to believe that one could hear an unidentified vehicle ‘speeding’ without being able to determine the actual speed of the vehicle.”

What prosecutors litigate this case? Even if you can find a judge willing to sign off on such a ridiculous claim, who litigates these cases?

The case was prosecuted by Martin Frantz and Latecia E. Wiles.

For the full story, click here.

11 thoughts on “An Ear For Crime: Ohio Appellate Court Rules that Officer Cannot Issue Speeding Tickets Based on Sound Alone”

  1. From the “urban dictionary”

    “the way a FOB (fresh off the boat) pronounces “year”
    how man “ears” have you been an idiot?”

  2. Methinks the ability of officers to get away with this line of reasoning when it comes to “smelling” evidence of drugs has gone to their heads. Generally, an officer’s testimony that he/she “smelled” evidence of drug use is accepted without question as to the training in that arena and validity of that ability. Seems to be two different standards at work here….

  3. In traffic court, officers always testify that they have calibrated their radar unit at the beginning of their shift to assure accuracy. Whether true or not, it usually prevents the defense from challenging the radar itself. Such is not the case with stationary red light/speed cameras. I have no idea how fast anybody else was going Friday at E40th and Prospect in Cleveland, but everybody I saw was doing the 25 speed limit or less. The camera flashed twice, indicating it had detected somebody speeding through the green light. These tickets are a real problem to dispute. I don’t know if anybody actually was cited, but seeing the flash made me wonder how often (if ever) these units are calibrated, and how accurate they really are.

  4. Interesting situation that would have been even more so if the accused were in a jurisdiction that increased fines if charges were disputed.

    This particular officer needs to be looked at very closely by the Court.

  5. What is forgotten in this discussion of the Officer’s ludicrous testimony is that traffic fines are used as a means of hidden taxation and in many instance LEO’s are rated by their adherence to a ticket quota. Most dangerous in motor vehicle situations is tailgating, continuous lane changing, failure to signal and overactive egos. The driving offenses characterized by this are dealt with on a hit or miss basis by officers, who primarily, pick opportune places to lie in wait for speeders.

    The popular anti-tax movement of the last 30 years has led supposedly conservative politicians and their frightened liberal
    counterparts to raise revenue in hidden ways. Using the police in this scheme serves only to corrupt them away from their ostensible purpose.

  6. Semi-related:

    Earlier this year, Professor Turley blogged about a traffic stop tasering. There was a speeding charge brought against the motorist in that case which was clearly bogus. This bogus speeding charge was dropped because the tasering was egregious. I believe that the police officer involved received some minor discipline for the tasering, and I believe he is appealing that minor discipline. Here is Professor Turley’s post about that:

    My point is this: even when police officers are caught lying about a speeding charge, there is no discipline. Even the most astute commentators (and I put Professor Turley in that class) fail to take note of the lying about speeding, like it is somehow not a big deal, or maybe it is a big deal, but it is an intractable problem so, the less said, the better. I am hoping that society will get its priorities straight. Frankly, in that tasering case I linked here in this post, I thought the lying about speeding aspect was more troubling even than the tasering aspect. The tasering only revealed cowardice on the policeman’s part. Lying about speeding, however, revealed moral turpitude and that should be considered as worse.

  7. Officer Roth listened to “Silence Is Golden” and gave it an 8.5.
    He was later asked about the 8.5 score, to which he responded; “That’s not a score. That’s the speed the song was traveling in MPH”.

  8. Officer Roth has learned that “Silence is Golden”. Furthermore, he should also be fired and lose his *Roth* IRA.

  9. Trial judge needs fired. Actually policeman needs fired too for lying in court (about his training, at least, and probably about the radar reading too). Prosecutor did just fine. The only way to end police nonsense, like this bogus speeding ticket, is to take this stuff to court and show the policeman that lying in court will not be tolerated. Of course the courts need to do their job and be skeptical of policepeople, too.

    Frankly, in cases without direct radar or lidar data, or dashcam video, I don’t see how speeding can ever be proved “beyond a reasonable doubt” in cases where the driver denies speeding. The driver denying the speeding would seem to raise a reasonable doubt in any case. If the case is pure cop said / driver said, with no physical evidence of the speeding, I can see how the prosecution could meet a preponderance standard, but beyond-reasonable-doubt? No way.

    I am surprised that judges don’t see it that way. Sometimes it even makes me wonder about the systemic integrity of the traffic court bench.

  10. There is a case out of Michigan that is called the Ferency Doctrine. It is named for a Professor Zolton Ferency that enumerates the factors that must be present for even a radar detector to be used for purposes of speeding see the case of People v Ferency, 133 Mich App 526; 351 NW2d 225 (1984).

    See this History Paper

    On Litigation On and Pertinent to Speed Limits

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