STATE OF OHIO, Plaintiff-Appellee v. ADRIAN BIZZELL, Defendant-Appellant
C.A. CASE NO. 27676
T.C. NO. 2016-CR-3867
IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT MONTGOMERY COUNTY
December 8, 2017
[Cite as State v. Bizzell, 2017-Ohio-8902.]
(Criminal Appeal from Common Pleas Court)
Rendered on the 8th day of December, 2017.
SARAH HUTNIK, Atty. Reg. No. 0095900, Assistant Prosecuting Attorney, 301 W. Third Street, 5th Floor, Dayton, Ohio 45422 Attorney for Plaintiff-Appellee
CARLO McGINNIS, Atty. Reg. No. 0019540, 55 Park Avenue, Oakwood, Ohio 45419 Attorney for Defendant-Appellant
DONOVAN, J.
{¶ 1} This matter is before the Court on the August 2, 2017 Notice of Appeal of Adrian Bizzell. Bizzell appeals from his judgment entry of conviction, following no contest pleas, to one count of having weapons while under disability (prior offense of
{¶ 2} Bizzell was indicted on January 17, 2017. On March 1, 2017, he filed a motion to suppress, and on May 4, 2017, he filed a second motion to suppress. A hearing was held on the motions on May 22, 2017, wherein Officer Robert Christoffers testified that he has been employed by the City of Dayton Police Department since April of 2016. Christoffers stated that after midnight on December 13, 2016, he stopped a vehicle driven by Bizzell in front of 552 Pierce Street. According to Christoffers, Bizzell was driving a red pickup truck, and Christoffers “just first noticed the car leaving the Twin Towers neighborhood and turning onto Xenia and turning back into the neighborhood on Nassau.” Christoffers stated that he observed a traffic violation “at the stop sign at Nassau and Clover, which also connects to Pierce. It is like a weird five way intersection.” According to Christoffers, Bizzell failed to signal 100 feet prior to turning right. He stated that he was behind Bizzell as Bizzell slowed down “for the stop sign. Probably within I would say the last five to 10 feet of the stop sign is when he turned his signal on to signal to the right, and then proceeded to turn right.” Christoffers testified that the Twin Towers neighborhood is “off Xenia Avenue. It is one of the hotspots on the east side of the city for prostitution and drugs.”
{¶ 3} Christoffers identified a DVD of his cruiser cam video of the traffic stop, which he testified accurately depicts the stop. Christoffers stated that he approached the driver‘s
{¶ 4} Upon learning about the presence of a weapon, Christoffers stated that he placed Bizzell in handcuffs “just for my safety to kind of keep him a little bit more contained.” Christoffers stated that he then placed Bizzell in his cruiser and requested a second crew. Christoffers stated that he asked Bizzell for his personal information, and that Bizzell‘s vehicle “was inventoried.” He stated that he found a small digital scale “consistent with weighing items, usually drugs.” Christoffers stated that a semiautomatic pistol was retrieved from under the driver‘s seat. Christoffers testified that he photographed the weapon in its location before removing and unloading it. He stated that he read Bizzell “his Miranda rights from the card from the Prosecutor‘s office.”
{¶ 5} Christoffers testified that Bizzell agreed to speak to him, that he did not appear to be under the influence of anything, that he appeared to understand their conversation, and that he did not ask for an attorney. Christoffers stated that he then transported Bizzell to the Montgomery County jail and “tagged all the evidence into the
{¶ 6} On cross examination, Christoffers testified that based upon his training and experience, “Xenia Avenue is a popular street where prostitutes will walk. And cars will turn and circle in the neighborhood to come back and pick them up if they see a girl. So when [Bizzell] turned out and turned back into the neighborhood is what caught my attention to the vehicle.” He stated that he did not ask Bizzell any further questions about the gun other than its location in the vehicle before he read him his rights. Christoffers testified that Bizzell was cooperative in the course of the stop, and that his vehicle was towed thereafter. Christoffers stated that in the course of identifying Bizzell, he learned that his license was suspended. He stated that Bizzell was alone in the vehicle, that the vehicle was not registered to him, and that it had Indiana plates. He stated that he allowed Bizzell to call the registered owner, but that no one arrived to remove the car before the tow truck.
{¶ 7} On June 20, 2017, the trial court made oral findings in ruling on the motions to suppress and issued its Decision the following day. In its oral findings, the court indicated that it watched the cruiser cam video several times. After summarizing Christoffers’ testimony, the court found as follows:
First of all, with regard to the stop, the Court will find that the officer observed a traffic violation and had reasonable suspicion and probable cause to stop the vehicle. Then when the Defendant indicated that he did not have a driver‘s license with him, the office[r] was authorized to remove the Defendant from the vehicle and the pat down was incident to placing the Defendant in the vehicle. There was nothing found on the Defendant in
the pat down. The officer asked if there was anything on the Defendant that would hurt him and the Defendant responded spontaneously that he had a gun in the car, which was not in response to the question asked by the officer.
The Court will find there was no violation to Defendant‘s Miranda rights in the officer asking if he had anything on his person that would poke, stick, or hurt him and the Defendant‘s response was not responsive to the question asked.
In addition, the Court will find that the officer had not only probable cause, but reasonable suspicion to search the vehicle as a result of the Defendant‘s statement; and further, that the search of the vehicle was authorized by the City‘s tow policy. There was no violation of the Defendant‘s fourth, fifth, or sixth amendment rights in his encounter with Officer Christoffers; and the Court will overrule Defendant‘s motion to suppress.
{¶ 8} On June 29, 2017, a “Memorandum in Support of Defendant‘s Motion to Suppress” was filed. Therein, Bizzell asserted that Christoffers’ “testimony concerning the actions of the Defendant prior to the stop is not corroborated by the State‘s own evidence,” namely the video. He asserted that “[n]owhere on the video is the vehicle driven by Defendant seen doing anything other than travelling eastbound on Xenia then turning south on Nassau. The seizure for the turn signal violation occurred shortly thereafter.” Also on June 29, 2017, a “Motion to Supplement Record in Motion to Suppress” was filed by Bizzell. An “Amended Memorandum in Support of Defendant‘s
{¶ 9} On July 3, 2017, in the course of a pre-trial conference, counsel for Bizzell indicated that Bizzell would plead no contest. The court indicated that it considered the issues raised subsequent to its decision on the motions to suppress, and it indicated that it “reviewed the video and had a different factual assessment of the matter, in that on the video, from my perspective, the Defendant can clearly be seen not signaling until right before he turned the corner.” The court indicated that “even after considering these matters, the motion continues to be overruled.” On July 24, 2017, Bizzell entered his no contest pleas.
{¶ 10} Bizzell asserts the following four assignments of error, which we will consider together:
THE TRIAL COURT ERRED IN OVERRULING APPELLANT‘S MOTION TO SUPPRESS.
And,
WHETHER THE TRIAL COURT ERRED IN FAILING TO SU[P]PRESS THE FRUIT OF A WARRANTLESS SEARCH AND THEREBY PRECLUDED DEFENDANT‘S CONSTITUTIONAL RIGHTS TO UNREASONABLE SEARCHES AND DUE PROCESS UNDER THE FOURTH, FIFTH, AND FOURTEENTH AMENDMENTS OF THE UNITED STATES CONSTITUTION AND
ARTICLE 1, SECTION 10 OF THE OHIO STATE CONSTITUTION .
And,
THE TRIAL COURT ERRED AS A MATTER OF LAW WHEN IT FOUND THAT OFFICER CHRISTOFFERS HAD REASONABLE SUSPICION AND PROBABLE CAUSE TO STOP APPELLANT‘S VEHICLE FOR MAKING A TURN IN VIOLATION OF
R.C. 4511.39 .And,
THE TRIAL COURT ERRED BY DENYING APPELLANT‘S MOTION TO SUPPRESS STATEMENTS AND EVIDENCE SEIZED INCIDENT TO, AND SUBSEQUENT TO, HIS ARREST.
{¶ 11} Bizzell asserts that a review of the cruiser cam video does not corroborate Christoffers’ testimony. According to Bizzell, the “video begins recording when Officer Christoffers is approaching the intersection of Corwin and Xenia Avenue. (see Exhibit 1 and Exhibit 2 attached).” No exhibits are attached to Bizzell‘s brief. Bizzell asserts that “Corwin is the first street intersecting Xenia which leads from the area described by the Officer as being an area of prostitution and other illegal acts. Nowhere on the video is the vehicle driven by Defendant seen doing anything other than travelling eastbound on Xenia then turning south on Nassau.” According to Bizzell, “a review of the facts shows that prior to coming to a complete stop, Appellant already had engaged his right turn signal which continued for a distance greater than 100 feet before conflict [sic] with the terminus of the Pierce Street right of way.” Bizzell argues that Christoffers “was clearly on the lookout for anyone going in and out of the subject neighborhood for purposes of engaging in prostitute and drug activity,” and that “there was more interest in investigating illegal conduct, than in reasonably concluding that it was necessary to engage [in]
{¶ 12} The State responds that “Bizzell was required to signal his turn 100 feet prior to the stop sign,” and that he “committed a turn-signal violation and that the subsequent traffic stop was constitutionally valid.” According to the State, “the roadside questioning pursuant to a traffic stop does not constitute a custodial interrogation for the purposes of Miranda.” The State argues that “Bizzell voluntarily admitted that there was a gun in the car.” Finally, the State asserts that even “if Bizzell had not told Officer Christoffers about the gun in the car, the gun would eventually have been found through a constitutionally-valid inventory search,” based upon Bizzell‘s suspended license.
{¶ 13} As this Court has previously noted:
“Appellate review of a motion to suppress presents a mixed question of law and fact. When considering a motion to suppress, the trial court assumes the role of trier of fact and is therefore in the best position to resolve factual questions and evaluate the credibility of witnesses.” State v. Koon, 2d Dist. Montgomery No. 26296, 2015–Ohio–1326, ¶ 13,
quoting State v. Burnside, 100 Ohio St.3d 152, 2003–Ohio–5372, 797 N.E.2d 71, ¶ 8. “Consequently, an appellate court must accept the trial court‘s findings of fact if they are supported by competent, credible evidence. Accepting these facts as true, the appellate court must then independently determine, without deference to the conclusion of the trial court, whether the facts satisfy the applicable legal standard.” Id. The application of the law to the trial court‘s findings of fact is subject to a de novo standard of review. State v. Gordon, 5th Dist. Fairfield No. 14–CA–13, 2014-Ohio-5027, ¶ 14, citing Ornelas v. United States, 517 U.S. 690, 116 S.Ct. 1657, 134 L.Ed.2d 911 (1996).
State v. Dowty, 2d Dist. Montgomery No. 26982, 2016-Ohio-4719, ¶ 6.
{¶ 14} As this Court has further noted:
When a police officer stops a motor vehicle for a traffic violation, the stop itself constitutes a “seizure” within the meaning of both the
Fourth Amendment of the United States Constitution ; Berkemer v. McCarty (1984), 468 U.S. 420, 436-37, 104 S.Ct. 3138, 3148, 82 L.Ed.2d 317, 332-333; andSection 14, Article I, of the Ohio Constitution ; see Dayton v. Erickson (1996), 76 Ohio St.3d 3, 11, 665 N.E.2d 1091. The temporary detention involved in a traffic stop, however, is not considered “custody” triggering the Miranda[] protections ofFifth Amendment rights. Berkemer, 468 U.S. at 440. It is, instead, more akin to a “Terry stop,” during which a police officer may briefly detain a person andconduct an investigation upon a reasonable suspicion of criminal activity. Id. at 439 (citing Terry v. Ohio (1968), 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889). Thus, the initial inquiry regarding the constitutionality of a traffic stop is whether a police officer‘s observations “lead him reasonably to suspect” that the person he wishes to detain has committed, is committing, or will commit a crime. Id. at 439 (quoting United States v. Brignoni-Ponce (1975), 422 U.S. 873, 881, 95 S.Ct. 2574, 45 L.Ed.2d 607). When police observe a traffic offense being committed, the initiation of a traffic stop does not violate
Fourth Amendment guarantees, even if the stop was pretextual or the offense so minor that no reasonable officer would issue a citation for it. Whren v. United States (1996), 517 U.S. 806, 116 S.Ct. 1769, 1774-75, 135 L.Ed.2d 89, 98-100.
State v. Wineberg, 2d Dist. Clark No. 97-CA-58, 1998 WL 409021, *2-3.
{¶ 15}
(A) No person shall turn a vehicle or trackless trolley or move right or left upon a highway unless and until such person has exercised due care to ascertain that the movement can be made with reasonable safety nor without giving an appropriate signal in the manner hereinafter provided.
When required, a signal of intention to turn or move right or left shall be given continuously during not less than the last one hundred feet traveled by the vehicle or trackless trolley before turning * * *
{¶ 16} “It is well established that even without suspicion of criminal activity, a police
* * * [T]he authority to stop an individual does not necessarily equate to authority to search the individual and place him or her in the back seat of the cruiser to verify the individual‘s identification. State v. Roberts, Montgomery App. No. 23219, 2010-Ohio-300, ¶ 16, quoting State v. Stewart, Montgomery App. No. 19961, 2004-Ohio-1319 ¶ 16. See, also, State v. Evans (1993), 67 Ohio St.3d 405, 409 (stating a Mimms order does not automatically bestow upon the police officer the authority to conduct a pat-down search for weapons). Instead, we must consider whether, based on the totality of the circumstances, the officer had a reasonable, objective basis to believe that the motorist is armed and dangerous before patting him down for weapons in anticipation of placing him in the cruiser. Evans, supra, citing State v. Andrews (1991), 57 Ohio St.3d 86. See, also, State v. Dozier, Montgomery App. No. 23841, 2010-Ohio-2918, ¶ 8.
State v. Lovins, 2d Dist. Montgomery No. 23530, 2010-Ohio-3916, ¶ 12.
{¶ 17} We have reviewed the video of the traffic stop, and it is consistent with Christoffers’ testimony at the suppression hearing. The video reflects that Bizzell signaled his right hand turn from Nassau Street onto Pierce Street as he came to a stop
HALL, P.J. and FROELICH, J. concur.
Copies mailed to:
Sarah E. Hutnik
Carlo McGinnis
Hon. Mary K. Huffman