State v. BrooksState v. Brooks
COUNSEL FOR APPELLANT: Adam J. Baker, Adam J. Baker, Attorney & Counselor At Law, LLC, 8 North Court Street, Ste. 212, Athens, Ohio 45701
COUNSEL FOR APPELLEE: Patrick J. Lang, Athens City Law Director, and James K. Stanley, Athens City Prosecutor, Law Administration Building, 8 East Washington Street, Stе. 301, Athens, Ohio 45701
CRIMINAL APPEAL FROM MUNICIPAL COURT
{¶ 1} This is an appeal from an Athens County Municipal Court judgment of conviction and sentence. Raymond Brooks, defendant below and appellant herein, pled “no contest” to a charge of operating a motor vehicle while under the influence of alcohol in violation of
FIRST ASSIGNMENT OF ERROR:
“THE TRIAL COURT ERRED IN FINDING THAT THE ARRESTING OFFICER HAD A REASONABLE AND ARTICULABLE SUSPICION IN ORDER TO INITIATE A TRAFFIC STOP OF APPELLANT.”
SECOND ASSIGNMENT OF ERROR:
“THE TRIAL COURT ERRED IN FINDING THAT THERE WAS PROBABLE CAUSE TO ARREST THE APPELLANT FOR OPERATING A MOTOR VEHICLE UNDER THE INFLUENCE.”
{¶ 2} Sometime after midnight on June 1, 2013, appellant drove a white Subaru to the fast-food pick-up lane at Wendy‘s restaurant on Richland Avenue in Athens. When asked for his order, appellant apparently responded to the intercom that he wanted a “beer.”1 Tracy Gribble, a Wendy‘s employee, called the Athens Police Department to report a drunk driver. Officer Nick Magruder arrived a few minutes later while the white Subaru remained at the pick-up window.
{¶ 3} Officer Magruder parked and exited his vehicle, and walked to appellant‘s car to speak with him. When Magruder approached the passenger side window, he observed a beer sitting on the vehicle‘s console. Magruder then instructed appellant to move from the drive-through window to a curb about twenty fеet away.
{¶ 4} When Officer Magruder explained to appellant that someone had reported him as being intoxicated, appellant responded that “he wasn‘t drunk and he just had, he just had a six pack.” Magruder thеn asked appellant to exit the vehicle. At this point, the officer noted that appellant had “red, watery eyes” and seemed unsteady on his feet. Additional conversation also
{¶ 5} Subsequently, appellant filed a motion to suppress evidence that set forth a number of arguments, including (1) Officer Magruder‘s approach to his vehicle was unconstitutional, and (2) the arrest for violating
{¶ 6} The trial court filed a detailed decision and judgment on July 25, 2013 that denied appellant‘s motion. In so doing, the court ruled, inter alia, that (1) Officer Magruder‘s first contact with appellant at the drive-through window was not an actual traffic stop that implicated constitutional considerations, and (2) Officer Magruder had sufficient probable cause to arrest appellant for a violatiоn of
{¶ 7} Appellant later pled no contest to a violation of
I
{¶ 8} The gist of аppellant‘s two assignments of error is that the trial court erred by overruling his motion to suppress evidence. Before we address their particular merits, we set forth the appropriate standard of review.
{¶ 9} Appellate review of a decision and judgment on a motion to suppress evidence involves mixed questions of law and fact. State v. Grubb, 186 Ohio App.3d 744, 2010-Ohio-1265,
{¶ 10} Appellate courts will accept a trial court‘s factual findings if competent, credible evidence exists to support those findings. State v. Little, 183 Ohio App.3d 680, 2009-Ohio-4403, 918 N.E.2d 230, at ¶15 (2nd Dist.); State v. Metcalf, 111 Ohio App.3d 142, 145, 675 N.E.2d 1268 (4th Dist. 1996). However, appellate courts review de novo a trial court‘s application of law to those facts. State v. Higgins, 183 Ohio App.3d 465, 2009-Ohio-3979, 917 N.E.2d 363, at ¶14 (5th Dist.); State v. Poole, 185 Ohio App.3d 38, 2009- Ohio-5634, 923 N.E.2d 167, at ¶18 (11th Dist.). In other words, an аppellate court affords no deference to a trial court in its application of the law to the facts of the case.
II
{¶ 11} In his first assignment of error, appellant asserts that the trial court erred by finding thаt Officer Magruder had a reasonable and articulable suspicion of criminal activity to “stop” his car.
{¶ 12} The
{¶ 13} Not every contact between law enforcement and citizenry is of constitutional dimension. The United States Suprеme Court recognizes three categories of police-citizen interactions: (1) consensual encounters, (2) investigative or “Terry” type stops, and (3) arrests. State v. Williams, 4th Dist. Ross No. No. 10CA3162, 2011-Ohio-763, at ¶8; also see State v. Travis, 4th Dist. Scioto No. 06CA3098, 2008–Ohio–1042, at ¶9, citing Florida v. Royer (1983), 460 U.S. 491, 501–507, 103 S.Ct. 1319, 75 L.E.2d 229 and United States v. Mendenhall (1980), 446 U.S. 544, 553, 100 S.Ct. 1870, 64 L.E.2d 497.
{¶ 14} Appellant‘s argument characterizes the appearance of Officer Magruder at Wendy‘s, and his approach of appellant‘s car, as a “Terry” investigative stop that did not satisfy the requisite constitutional requirements. We need not, and do not, go into great detail of what is needed for an investigative stop under Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). However, to have a Terry stop there must be an actual stop of a vehicle. Here, as the trial court noted in its decision, no traffic stop occurred. Rather, appellant had already stopped his vehicle (of his own volition) at the drive-through window. Officer Magruder simply approached appellant‘s vehicle on foot to engаge him in conversation. Police may lawfully initiate a consensual encounter without either probable cause or a reasonable, articulable suspicion of criminal activity. State v. Jones, 4th Dist. Washington No. 11CA13, 2012-Ohio-1523, at ¶9. An encounter is consensual when an officer approaches a person in a public place, engages the person in conversation, requests information, and the person is free to not answer and walk away. Id. The mеre approach and questioning of the person seated within a parked vehicle does not
{¶ 15} Appellant‘s brief appears to cоuch the circumstances of the “stop” as Officer Magruder “show[ing] up at the Wendy‘s[.]” However, Magruder‘s contact with appellant at that point was a consensual encounter, not an investigative stop. Magrudеr testified at the suppression hearing that Wendy‘s employees talked with appellant at the pick-up window and the officer simply walked to the vehicle, in a public space, and engaged appellant in conversation. No evidence adduced at the hearing indicated that appellant lacked freedom of movement at that time. Only after Officer Magruder observed the beer on appellant‘s console did the officer instruct appellant to proceed to the curb.
{¶ 16} Therefore, we agree with the trial court‘s conclusion that Officer Magruder‘s appearance at Wendy‘s, and his initial aрproach of the vehicle, was not a Terry investigative stop and does not rise to a level that raises constitutional concerns. Accordingly, we hereby overrule appellant‘s first assignment of error.
III
{¶ 17} Appellant‘s second assignment of error asserts that the trial court erred in its conclusion that Officer Magruder had a sufficient basis (probable cause) for his arrest. We disagree with appellant.
{¶ 18} An arrest is valid when аn arresting officer has probable cause to believe that an arrestee has committed a crime. See State v. Timson, 38 Ohio St.2d 122, 311 N.E.2d 16, paragraph one of the syllabus (1974); also see State v. Martin, 4th Dist. Pickaway No. 04CA29, 2005-Ohio-4477, at ¶16. A determination of whether probable cause tо arrest exists must be
{¶ 19} Therefore, we hereby overrule appellant‘s second assignment of error and affirm the trial court‘s judgment.
JUDGMENT AFFIRMED.
It is ordered that the judgment be affirmed and that appellee recover of appellant the costs herein taxed.
The Court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this Court directing the Athens County Municipal Court to carry this judgment into execution.
If a stay of execution of sentence and release upon bail has been previously granted, it is continued for a period of sixty days upon the bail рreviously posted. The purpose of said stay is to allow appellant to file with the Ohio Supreme Court an application for a stay during the pendency of the proceedings in that court. The stay as herein continued will terminate at the expiration of the sixty day period.
The stay will also terminate if appellant fails to file a notice of appeal with the Ohio Supreme Court in the forty-five day period pursuant to Rule II, Sec. 2 of the Rules of Practice of the Ohio Supreme Court. Additionally, if the Ohio Supreme Court dismisses the appeal prior to the expiration of said sixty days, the stay will terminate as of the date of such dismissal.
A certified copy of this entry shall constitute that mandate pursuant to Rule 27 of the Rules of Appellate Procedure.
Harsha, J. & Hoover, J.: Concur in Judgment & Opinion
For the Court
BY:
Peter B. Abele
Presiding Judge
NOTICE TO COUNSEL
Pursuant to Local Rule No. 14, this document constitutes a final judgment entry and the time period fоr further appeal commences from the date of filing with the clerk.