STATE OF OHIO, Plaintiff-Appellant, v. JAY A. DALLMAN, Defendant-Appellee.
CASE NOS. CA2017-11-056, CA2017-11-057
IN THE COURT OF APPEALS TWELFTH APPELLATE DISTRICT OF OHIO CLERMONT COUNTY
7/9/2018
2018-Ohio-2670
HENDRICKSON, P.J.
CRIMINAL APPEAL FROM CLERMONT COUNTY MUNICIPAL COURT, Case Nos. 2017 CRB 03005 and 2017 TRC 09951
D. Vincent Faris, Clermont County Prosecutor, Nicholas Horton, 76 South Riverside Drive, 2nd Floor, Batavia, Ohio 45103, for plaintiff-appellant
Gary Rosenhoffer, 313 East Main Street, Batavia, Ohio 45103, for defendant-appellee
HENDRICKSON, P.J.
{¶ 1} Plaintiff-appellant, the state of Ohio, appeals the decision of the Clermont County Municipal Court granting a motion to suppress by defendant-appellee, Jay A. Dallman. For the reasons set forth, we reverse the judgment of the trial court.
{¶ 2} On June 30, 2017, Officer McMillan of the village of Batavia Police Department was on duty, in uniform, and in a marked cruiser, on eastbound State Route 32. McMillan was near the intersection of Bauer Road and State Route 32 in the village of
{¶ 3} During the stop, McMillan detected an odor consistent with an alcoholic beverage emanating from Dallman‘s vehicle and observed that Dallman‘s speech was slurred. Dallman informed McMillan he had consumed approximately five beers and that he did not have a valid driver‘s license. McMillan also observed an open beer bottle inside the vehicle. Based on this new information, McMillan administered several field sobriety tests, after which McMillan affected a warrantless arrest of Dallman and transported him to the police station. Upon arrival, Dallman submitted to a breathalyzer test, revealing a blood-alcohol-content (“BAC“) of .220. McMillan issued Dallman citations and summonses for operating a vehicle under the influence of alcohol (“OVI“) in violation of
{¶ 4} Dallman entered a not guilty plea and subsequently filed a motion to suppress, claiming that the traffic stop and arrest were illegal as the officer conducted them outside his territorial jurisdiction and without an arrest warrant. Following a hearing on the motion on September 6, 2017, the trial court took the matter under advisement to allow the parties to brief the jurisdictional issue before the court, i.e., Dallman‘s warrantless arrest outside
{¶ 5} Assignment of Error No. 1:
{¶ 6} THE TRIAL COURT ERRED IN GRANTING APPELLEE‘S MOTION TO SUPPRESS, AS THE OFFICER HAD JURISDICTION TO PULL APPELLEE OVER FOR A VIOLATION OF SECTION 4503.21 COMMITTED BOTH WITHIN THE OFFICER‘S JURISDICTION AND ON A STREET IMMEDIATELY ADJACENT TO THE OFFICER‘S JURISDICTION.
{¶ 7} Assignment of Error No. 2:
{¶ 8} THE TRIAL COURT ERRED IN DETERMINING THAT SUPPRESSION OF THE EVIDENCE WAS THE PROPER REMEDY FOR THE OFFICER FAILING TO FULLY COMPLY WITH SECTION 2935.03(E)(3).
{¶ 9} The state contends the trial court erred in finding that McMillan did not have authority to detain, arrest, and cite Dallman, for multiple traffic violations committed both in McMillan‘s territorial jurisdiction and on a street adjacent to his territorial jurisdiction.
{¶ 10} An appellate court‘s review of a motion to suppress presents a mixed question of law and fact. State v. C.J., 12th Dist. Warren No. CA2017-06-082, 2018-Ohio-1258, ¶ 25. The trial court assumes the role of the trier of fact in ruling on a motion to suppress; therefore, it is in the best position to resolve factual questions and evaluate witness credibility. Id. Thus, an appellate court accepts the trial court‘s findings of fact, if such findings are supported by competent, credible evidence. Id. However, with respect to applying the appropriate legal standard, an appellate court conducts a de novo review.
McMillan‘s Commencement of the Traffic Stop Based on Dallman‘s Failure to Display a Rear License Plate
{¶ 11}
(A)(1) [a] sheriff, deputy sheriff, marshal, deputy marshal, municipal police officer, township constable, police officer of a township or joint police district * * * shall arrest and detain, until a warrant can be obtained, a person found violating, within the limits of the political subdivision * * * in which the peace officer is appointed, employed, or elected, a law of this state, an ordinance of a municipal corporation, or a resolution of a township.
{¶ 12}
(1) The pursuit takes place without unreasonable delay after the offense is committed;
(2) The pursuit is initiated within the limits of the political subdivision * * * within its territorial jurisdiction, * * * in which the peace officer is appointed, employed, or elected or within the limits of the territorial jurisdiction of the peace officer;
(3) The offense involved is a felony, a misdemeanor of the first degree or a substantially equivalent municipal ordinance, a misdemeanor of the second degree or a substantially equivalent municipal ordinance, or any offense for which points are chargeable pursuant to [R.C.] 4510.036 * * *.
{¶ 13}
[a] police officer * * * appointed, elected, or employed by a municipal corporation may arrest and detain, until a warrant can be obtained, any person found violating any section or chapter of the Revised Code listed in division (E)(1) of this section on the portion of any street or highway that is located immediately adjacent to the boundaries of the municipal corporation in which the police officer or village marshal is appointed, elected, or employed.
In turn,
{¶ 14} McMillan conducted the traffic stop based on his observation in the village of Batavia and adjoining Batavia Township that Dallman failed to display a rear license plate, in violation of
{¶ 15} A violation of
{¶ 16} We now address McMillan issuing a citation in lieu of making an arrest for the failure to display a rear license plate offense. According to law, a person charged with committing a minor misdemeanor is not subject to arrest.
{¶ 17} Accordingly,
The Arrest Occurred on Private Property
{¶ 18} Both the trial court and Dallman placed emphasis on the fact that the arrest took place on private property. The trial court found that McMillan acted in violation of
{¶ 19} The language contained in
Dallman‘s Subsequent Arrest
{¶ 20} The state argues
{¶ 21} “The general common-law rule is that the power of a municipal police officer is limited to the boundaries of his municipality, and that he may not, even with a warrant, make an arrest outside his territory for a misdemeanor.” Fairborn v. Munkus, 28 Ohio St.2d 207, 209 (1971). We found above that the license plate offense justified the extraterritorial traffic stop affected by McMillan pursuant to
{¶ 22} The state‘s assertion that Dallman did not become intoxicated and fail to reinstate his license in the limited time between McMillan‘s observation of the license plate violation and the commencement of the extraterritorial traffic stop is a logical inference to draw from the facts of this case. However, an officer must know the facts sufficient to constitute probable cause that a traffic violation occurred at the time the officer makes the stop. City of Dayton v. Erickson, 76 Ohio St.3d 3, 10 (1996). At the time of the stop here, McMillan only had knowledge of facts sufficient to constitute the offense of driving without a rear license plate. Thus,
{¶ 23} McMillan, however, did not discover the facts supporting probable cause to make an arrest with respect to the remainder of the charged offenses until after the commencement of the extraterritorial traffic stop. Thus, pursuant to the express language of
The Appropriate Remedy for the Warrantless Arrest
{¶ 24} The trial court determined that suppression of the evidence was the appropriate remedy. In so holding, the trial court compared the Ohio Supreme Court‘s decisions in State v. Jones, 88 Ohio St.3d 430 (2000) and State v. Brown, 143 Ohio St.3d 444, 2015-Ohio-2438 (Brown II). The trial court noted Brown II was determined after Jones, and even though there were distinguishable facts in the case at bar from Brown II, the trial court believed “that suppression of the evidence is the appropriate remedy in this case when Officer McMillan made an arrest outside his jurisdiction contrary to the requirements set forth” in
{¶ 25} The Fourth Amendment to the United States Constitution, made applicable to the states through the Fourteenth Amendment, provides: “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause * * *.” Section 14, Article I of the Ohio Constitution contains nearly identical language; however, the Ohio Supreme Court has determined that the Ohio Constitution has force independent of the United States Constitution and provides greater protection than the Fourth Amendment. State v. Brown, 99 Ohio St.3d 323, 2003-Ohio-3931, ¶ 21 (Brown I) (suppressing evidence based on contemporaneous violations of
{¶ 26} An automobile stop by a police vehicle based on probable cause that a traffic violation occurred is reasonable under the United States and Ohio Constitutions. City of Bowling Green v. Godwin, 110 Ohio St.3d 58, 2006-Ohio-3563, ¶ 11. The United States Supreme Court has held that suppression of evidence obtained as a result of a Fourth Amendment violation is an essential part of the constitutional protections provided therein. Mapp v. Ohio, 367 U.S. 643, 657, 81 S.Ct. 1684 (1961). This is known as the exclusionary rule. Id. The Ohio Supreme Court has consistently held that a purely statutory violation does not trigger application of the exclusionary rule. Jones at 435-36. Rather, a statutory violation warrants application of the exclusionary rule only when the violation contemporaneously violates the United States or Ohio Constitutions. Id.; see also Brown I at ¶ 16.
{¶ 27} The United States Supreme Court has held that a warrantless minor misdemeanor arrest based upon probable cause does not run afoul to the Fourth Amendment to the United States Constitution. Atwater v. City of Lago Vista, 532 U.S. 318, 354, 121 S.Ct. 1536 (2001). The Ohio Supreme Court applies a balancing test to determine whether an unauthorized warrantless arrest constitutes a violation of the Ohio Constitution. Jones at 438, overruled in part by Brown I at ¶ 22 (finding Jones “is still authoritative as to the Ohio Constitution“).
[T]he balancing test requires that we weigh the competing interests surrounding the governmental action at issue. That is, we must evaluate on the one hand the degree to which the governmental action intrudes upon a person‘s liberty and privacy, and, on the other hand, the degree to which the intrusion is necessary for the promotion of legitimate governmental interests.
{¶ 28} In Brown II, the Ohio Supreme Court applied the Jones balancing test where
[t]he government‘s interests in permitting an officer without statutory jurisdiction or authority to make a traffic stop for a minor misdemeanor offense in these circumstances is minimal and is outweighed by the intrusion upon the individual‘s liberty and privacy that necessarily arises out of the stop.
{¶ 29} Likewise, the Sixth District analyzed the initiation of an extraterritorial traffic stop for suspicion of an OVI offense where an Ohio Department of Natural Resources park officer observed a motorist drive outside his lane multiple times. State/Maumee v. Curran, 6th Dist. Lucas No. L-16-1172, 2017-Ohio-7008, ¶ 4. The park officer became concerned the motorist may strike another vehicle and initiated the traffic stop. Id. The park officer‘s observations and the traffic stop both occurred outside the officer‘s statutory jurisdiction. Id. at ¶ 17. Therefore, the park officer acted outside his statutory authority. Id. at ¶ 11. Nonetheless, the court applied the Jones balancing test and upheld the traffic stop under the Ohio Constitution. Id. at ¶ 17-18. The court found the test weighed in favor of the state because there was an immediate safety justification for the stop due to the obvious danger presented by a motorist operating a vehicle while impaired. Id. at ¶ 18. Thus, the momentary invasion of the motorist‘s liberty and privacy interests was minimal compared to the risk his impaired driving posed to the public. Id.
{¶ 30} Applying Jones, Brown I, and Brown II to this case requires a consideration of whether McMillan acted within his statutory authority and had probable cause to stop,
{¶ 31} Consistent with Curran, we find the Jones balancing test weighs in favor of the state. OVI is a serious misdemeanor offense, which presents an immediate danger to the health, safety, and welfare of the public, as opposed to the minor misdemeanor offenses involved in Jones, Brown I, and Brown II. As in Curran, the additional intrusion upon Dallman‘s liberty and privacy interests was minimal compared to the legitimate governmental interest in eliminating the threat Dallman‘s impaired driving presented to the health, safety, and welfare of the public.
{¶ 32} Unlike Curran, McMillan did not attempt to contact local police before arresting Dallman. Nonetheless, Dallman‘s arrest was reasonable under the Ohio Constitution, considering the serious threat posed to the public by his impaired driving. Therefore, the OVI arrest did not violate Section 14, Article I of the Ohio Constitution,
{¶ 33} Accordingly, the state‘s assignments of error are sustained, the trial court‘s grant of the motion to suppress is reversed, and this cause is remanded for further proceedings.
M. POWELL, J., concurs.
RINGLAND, J., concurs separately.
RINGLAND, J., concurring separately.
{¶ 34} I agree with the resolution of the assignments of error. However, I write separately to address the apparent shortcoming of the controlling statutes.
{¶ 35} As correctly stated in the majority opinion,
{¶ 36} This issue has been ignored or deemed irrelevant in several prior instances. See State v. Sweeten, 1st Dist. Hamilton No. C-150583, 2016-Ohio-5828; State v. Black, 6th Dist. Fulton No. F-03-010, 2004-Ohio-218; State v. Boerner, 5th Dist. Stark No. 98CA00099, 1998 Ohio App. LEXIS 4714 (Aug. 31, 1998); State v. Shuttleworth, 5th Dist. Fairfield No. 99CA25, 1999 Ohio App. LEXIS 4745 (Sept. 29, 1999); Cincinnati v. Alexander, 54 Ohio St.2d 248 (1978). In the present case, I concur in judgment because Crim.R. 4(A)(3) supersedes the conflict in the statutes. State ex rel. Boylen v. Harmon, 107 Ohio St.3d 370, 2006-Ohio-7, ¶ 8 (“[w]here a conflict arises between a rule and a statute, the rule will control the statute on matters of procedure“).
{¶ 37} Nevertheless, I find the shortcoming in the statutes to be unfortunate and unhelpful in the administration of justice. I write separately because I believe the conflict in the statutes was unintentional and therefore urge the Ohio Legislature to amend the relevant statutes.