STATE OF OHIO, PLAINTIFF-APPELLEE, v. MICHAEL P. DILLEHAY, DEFENDANT-APPELLANT.
CASE NO. 17-12-07
IN THE COURT OF APPEALS OF OHIO THIRD APPELLATE DISTRICT SHELBY COUNTY
February 4, 2013
2013-Ohio-327
Aрpeal from Sidney Municipal Court Trial Court No. 2011TRC01000 Judgment Affirmed
Scott A. Kelly for Appellant
Jeffrey L. Amick for Appellee
{1} Defendant-Appellant, Michael Dillehay, appeals the judgment of the Sidney Municipal Court convicting him of operation of a motor vehicle while under the influence of alcohol (“OVI“) and driving in marked lanes. On appeal, Dillehay argues that the trial court erred in failing to suppress evidence obtained after police officers stopped his vehicle. Dillehay assеrts the following grounds for reversal: (1) his extraterritorial detention was invalid; (2) the arresting officers failed to establish the necessary reasonable suspicion to extend the traffic stop for the purpose of performing sobriety testing; (3) the State failed to prove that probable cause supported Dillehay‘s arrest; and (4) the evidence of the portable breath test (“PBT“) that the officers administered was unfairly prejudicial to Dillehаy. For the reasons that follow, we affirm the trial court‘s judgment.
{2} On April 18, 2011, Dillehay was cited for operation of a motor vehicle under the influence of
{3} On May 26, 2011, Dillehay moved to suppress all evidence stemming from the traffic stop. The trial court conducted a hearing on Dillehay‘s motion on July 15, 2011. During the hearing, the following relevant evidence was adduced. Officer Robbins testified that he observed Dillehay drive his vehicle out of the parking lot at a local bar arоund 2:15 a.m. The bar is located in Shelby County, but is not within the city limits of Sidney. Officer Robbins indicated that he noticed the taillights of Dillehay‘s vehicle were not operational. As a result, he proceeded to follow Dillehay and to contact the Shelby County Sheriff regarding the offense. According to his testimony, Officer Robbins only followed Dillehay for “less than a couple of minutes” and over the course of “a couple miles.” Tr., p. 10.
{4} The following exchange occurred regarding Officer Robbins’ observations of Dillehay‘s driving:
Q: And during that time that you followed [Dillehay], what did you observe about the operation of the vehicle?
A: I observed the vehicle * * * almost go off the roadway * * * * * *
Q: What did you observe about the operation of the vehicle?
A: That it was all over the road basically.
Q: For the whole two miles?
A: Not for the entire two miles, but you know, first I seen it go off the roadway on 47 and then when it turned onto Sidney-Freyburg Road, I seen it go left of center and almost into the other opposing lane.
Q: And when you saw it go off the – almost go off the roadwаy, what do you mean by that, how much – what percentage of the car and where at on the road?
A: I know the vehicle was at least straddling the center – part of the vehicle was in the other lane of travel.
* * *
Q: When it went off the roadway, did it go off to the right side or the left side?
A: The first time it would have been the right side of the roadway.
Q: And how far –
A: Toward the ditch.
Q: And how far off the road did it go?
A: That I‘m not sure because I still had some distance between us. I seen it, maybe the tires were off – off the side of the road. I mеan it didn‘t go into the ditch or anything like that. But the tires went off the right side of the roadway.
Q: Completely off the roadway? A: I believe so.
Q: And when you observed it later, going into the centerline, how far over the centerline?
A: At least half of the vehicle was in the opposing lane of traffic.1
Tr., p. 10-12.
{5} Deputy Bleigh heard Officer Robbins’ description of this erratic driving over the radio and suggested that Officer Robbins pull Dillehay‘s vehicle over. After doing so and approaching the vehicle, Officer Robbins noticed that Dillehay‘s “movement was very slow[],” tr., p. 16, and that he had trouble removing the license from his wallet. Upon Deputy Bleigh‘s arrival at the scene approximately three to four minutes later, Officer Robbins advised him of Dillehay‘s reduced motor skills and suggested that Deputy Bleigh look for indicators of intoxication.
{6} Deputy Bleigh then testified that upon his first contact with Dillehay, he “smell[ed] an odor of alcohol coming from inside the vehicle.” Tr., p. 44. As a result, he requested that Dillehay step out of the vehicle. Deputy Bleigh stated that when he talked with Dillehay outside of the vehicle, he still smelled alcohol on Dillehay‘s breath. He also observed that Dillehay was “slow moving” and had
{7} On cross examination, Deputy Bleigh acknowledged that he had not observed any of Dillehay‘s alleged traffic violations. He also discussed the performance of a horizontal gaze nystagmus (“HGN“) test and that Dillehay showed all of the cues for intoxication. Deputy Bleigh also testified that he administered a PBT, but he did not indicate the results of that test.
{8} On August 15, 2011, the trial cоurt granted Dillehay‘s motion in part and denied it in part. It suppressed evidence of the HGN test because the test was not conducted in accordance with National Highway Traffic Safety Administration standards. However, the trial court declined to suppress any other evidence from the traffic stop. On October 13, 2011, Dillehay changed his plea from not guilty to no contest and the matter proceeded to sentencing, and on November 29, 2011, the trial court sentenced Dillehay to 90 days in jail and Dillehay appealed. On January 12, 2012, we sua sponte dismissed Dillehay‘s appeal because the trial court‘s November 29, 2011 order was not final and appealable. On remand, the trial court issued a new order of sentencing that complied with our mandate.
Assignment of Error No. I
THE MUNICIPAL COURT ERRED IN FAILING TO SUPPRESS EVIDENCE FOR LACK OF JURISDICTION, AS THE STANDARD OF REASONABLE SUSPICION NECESSARY FOR EXTRATERRITORIAL DETENTION WAS NOT MET.
Assignment of Error No. II
THE MUNICIPAL COURT ERRED IN ENTERING JUDGMENT AGAINST APPELLANT AS THERE IS INSUFFICIENT EVIDENCE TO ESTABLISH REASONABLE SUSPICION OR PROBABLE CAUSE NECESSARY FOR SOBRIETY TESTING.
{10} Due to the nature of the assignments of error, we eleсt to address them out of order.
Assignment of Error No. II
{11} In his second assignment of error, Dillehay contends that the trial court should have suppressed evidence of the sobriety testing performed after the traffic stop. He advances the following bases for his contention: (1) the State failed to establish the necessary reasonable suspicion for extending the duration of the traffic stop and administering sobriety tests; (2) the State failed to show the necessary рrobable cause for arresting Dillehay; (3) the results obtained from the PBT are inadmissible under the Rules of Evidence as unfairly prejudicial; and (4)
Standard of Review for Motions to Suppress
{12} “Appellate review of a decision on a motion to suppress presents a mixed question of law and fact.” State v. Burnside, 100 Ohio St.3d 152, 2003-Ohio-5372, ¶ 8. The trial court serves as the trier of fact and is the primary judge of the credibility of the witnesses and the weight to be given to the evidence presented. State v. Johnson, 137 Ohio App.3d 847, 850 (12th Dist. 2000) Therefore, when an appellate court reviews a trial court‘s ruling on a motion to suppress, it must accept the trial court‘s findings of facts so long as they are supported by competent, credible evidence. State v. Roberts, 110 Ohio St.3d 71, 2006-Ohio-3665, ¶ 100, citing State v. Fanning, 1 Ohio St.3d 19, 20 (1982). The appellate court must then review the application of the law to the facts de novo. Id., citing Burnside, 2003-Ohio-5372, at ¶ 8.
Reasonable Suspicion for Extension of Traffic Stoр‘s Duration
{13} Both the United States Constitution and the Ohio Constitution prohibit the State from performing unreasonable searches and seizures.
{14} However, Dillehay does challenge the duration of the stop as beyond what is constitutionally permissible. In such a challenge, the reasonable suspicion standard applies. State v. Batchili, 113 Ohio St.3d 403, 2007-Ohio-2204, paragraph two of the syllabus; State v. Cromes, 3d Dist. No. 17-06-07, 2006-Ohio-6924, ¶ 36. The Supreme Court of Ohio has defined “reasonable articulable suspicion” as “specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant the intrusion [upon an individual‘s freedоm of movement].” State v. Bobo, 37 Ohio St.3d 177, 178 (1988), quoting Terry v. Ohio, 392 U.S. 1, 21-22 (1968). The existence of such suspicion is not based on individual facts standing alone, but rather the totality of the circumstances. State v. Mays, 119 Ohio St.3d 406, 2008-Ohio-4539, ¶ 12; Batchili at paragraph two of the syllabus.
{15} In a challenge to the duration of a traffic stop, the State “must present facts that justify [the stop‘s] duration.” State v. Hollins, 3d Dist. No. 5-10-41, 2011-Ohio-5588, ¶ 30. Generally, when investigating a minor traffic violation, a
{16} Here, Officer Robbins observed Dillehay pull out of a bar at approximately 2:15 a.m. and then proceed to drive erratically. His first action after pulling Dillehay over for the traffic violations wаs to request Dillehay‘s license. In the course of making this request, Officer Robbins noticed that Dillehay had trouble getting the license out of his wallet and other reduced motor skills. Once Deputy Bleigh arrived at the scene of the traffic stop, Officer Robbins reported his observations to Deputy Bleigh, who then talked to Dillehay. Deputy
{17} Dillehay relies on State v. Flowers, 7th Dist. No. 07-MA-68, 2007-Ohio-6920, and State v. Gustin, 87 Ohio App.3d 859 (12th Dist. 1993), to support his proposition that findings of reasonable suspicion require facts that are “more grievous * * * than the brief venture onto the line allegedly committed * * * here.” Appellant‘s Br., p. 8. However, as noted above, the trial court‘s finding of reasonable suspicion was not solely based on Dillehay‘s erratic driving. Rather, the finding was based on a variety of circumstances. Thus, we are unable to find any persuasive guidance from Flowers and Gustin in this matter.
{18} Based on our review of the record, we find that the trial court appropriately found that Officer Robbins and Deputy Bleigh had the requisite
Probable Cause for Arrest
{19} A warrantless arrest is unconstitutional unless the arresting officer had probable cause to make the arrest. State v. Timson, 38 Ohio St.2d 122, 127 (1974). “In determining whether the police had probable cause to arrest an individual for [OVI], we must consider whether, at the moment of arrest, the police had information, derived from a reasonably trustworthy source of facts and circumstances, sufficient to cause a prudent person to believe that the suspect was driving under the influence.” State v. Thompson, 3d Dist. Nos. 14-04-34 & 14-04-35, 2005-Ohio-2053, ¶ 18, citing State v. Homan, 89 Ohio St.3d 421 (2000), superseded by statute on other grounds as stated in State v. Boczar, 113 Ohio St.3d 148, 2007-Ohio-1251. The existence of probable cause is based on the totality of the circumstances. Cromes, 2006-Ohio-6924, at ¶ 38, citing United States v. Arvizu, 534 U.S. 266 (2002).
{20} We find this matter to be similar to the facts present in State v. Jividen, 3d Dist. No. 9-05-29, 2006-Ohio-2782. There, the defendant was pulled over around 2:30 a.m. and he proceeded to admit to the arresting officer that he had just left a local bar and that he had been drinking. The arresting officer testified to smelling the odor of alcohol on the defendant‘s breath, observing that
{21} Here, Officer Robbins’ testimony indicates that he observed Dillehay pull his vehicle out of the parking lot at a local bar around 2:15 a.m. and then proceed to erratically drive over marked lanes. Officer Robbins also noticed that Dillehay had reduced motor skills when he first made contact and requested Dillehay‘s license. Meanwhile, Deputy Bleigh‘s testimony indicates that he smelled the odor of alcоhol on Dillehay‘s breath and that Dillehay admitted to drinking that evening. He further stated that he observed Dillehay to have balance issues and to have reduced motor skills. As in Jividen, these circumstances are sufficient to establish that Deputy Bleigh had the requisite probable cause to arrest Dillehay.
{22} To support his position, Dillehay analogizes to State v. Brown, 166 Ohio App.3d 638, 2006-Ohio-1172 (11th Dist.), and State v. Beagle, 2d Dist. No. 2002-CA-59, 2003-Ohio-4331. But, a review of Brown and Beagle reveals that they are easily distinguishable from the facts presented in this matter. In Brown, the defendant did not tell the officers before his arrest that he had been drinking. Thеre was also no indication that the defendant drove erratically or had balance
Evidence of PBT
{23} Before turning to the merits of Dillehay‘s argument to exclude evidence of the PBT, we initially note that there are several deficiencies with Dillehay‘s argument regarding the PBT. First, the trial court‘s ruling on the motion to suppress states that “[b]y agreement of the parties, [the] branch * * * of the motion regarding the breath test was not part of this motion.” (Docket No. 39, p. 1). This indicates that the trial court did not take the PBT evidence into consideration when ruling on the motion to suppress. It also results in a waiver on Dillehay‘s part of all but plain error.
{24} Second, Dillehay, and not the State, was the party who brought the PBT to the attention of the trial court during the suppression hearing. We also note that Dillehay merely presented evidence that the PBT was performed. There was no evidence оf the results of the test.
{26} However, we find that our decision in Jividen controls our review here. There, the State offered evidence of the defendant‘s PBT results during the
Fruit of the Poisonous Tree
{27} Since we find that there was reasonable suspicion for the traffic stop and probable cause for Dillehay‘s arrest, we likewise find that the fruit of the poisonous tree doctrine has no applicability in this matter. See City of Kettering v. Hollen, 64 Ohio St.2d 232, 235 (1980) (finding that the fruit of the poisonous tree doctrine does not apply where the court finds that there is no Fourth Amendment violation). Consequently, the trial court did not err in denying the motion to suppress under this doctrine.
{28} In sum, a review of the record reveals that Officer Robbins and Deputy Bleigh had the requisite reasonable suspicion to extend the duration of the traffic stop, that the State established the existence of probable cause for arresting Dillehay, and that the evidence of PBT was not prejudicial to Dillehay. Due to
{29} Accordingly, we overrule Dillehay‘s second assignment of error.
Assignment of Error No. I
{30} In his first assignment of error, Dillehay argues that the trial court should have granted his motion to suppress because Officer Robbins, as a member of the Sidney Municipal Police Department, had no jurisdiction to effectuate the traffic stop outside the city limits of Sidney. We disagree.
{31} Dillehay‘s argument is predicated on the premise that Officer Robbins’ traffic stop violated
{32} In State v. Weideman, 94 Ohio St.3d 501 (2002), the Supreme Court of Ohio handed down the following:
Where a law enforcement officer, acting outside of the officer‘s statutory territorial jurisdiction, stops and detains a motorist for an offense committed and observed outside the officer‘s jurisdiction, the seizure оf the motorist by the officer is not unreasonable per se under the Fourth Amendment. Therefore, the officer‘s statutory violation does not require suppression of all evidence flowing from the stop. Id. at syllabus.
Although the court found that suppression was inappropriate under the facts of the case, the language of its holding left open the possibility “that a court could find an extraterritorial stop [was] unreasonable based on the unique facts and сircumstances of a particular case.” State v. Jones, 121 Ohio St.3d 103, 2009-Ohio-316, ¶ 14.
{33} However, this possibility was foreclosed by the United States Supreme Court‘s decision in Virginia v. Moore, 553 U.S. 164 (2008). The Court unequivocally stated that “when an officer has probable cause to believe a person committed even a minor crime in his presence, the balancing of private and public interests is not in doubt. The arrest is constitutionally reasonable.” Id. at 171. Consequently, the Court found that state courts werе not required to employ the exclusionary rule to suppress evidence obtained in contravention of a state statute. Id. at 174-75. In accordance with Moore, the Supreme Court of Ohio has refined the finding in Weideman and held that where a police officer effectuates a traffic stop based on probable cause, suppression of
{34} Here, as discussed above, Officer Robbins had probable cause to stop Dillehay‘s vehicle for the violation of traffic laws. Under Jones, the fact that Officer Robbins was outside the territorial limits of Sidney at the time of the stop is immaterial to the constitutionality of the resulting search and seizure. The trial court could not suppress the evidence obtained after the stop on the basis that Officer Robbins may have violated
{35} Dillehay argues that we shоuld apply a balancing test of governmental interests and individual rights to find that the balance supports the granting of suppression. In support, Dillehay cites to State v. Howard, 7th Dist. No. 06 BE 1, 2007-Ohio-1237, and State v. Fitzpatrick, 152 Ohio App.3d 122, 2003-Ohio-1405 (6th Dist.). These cases from the Sixth and Seventh Districts predate Jones, which explicitly rejects the application of a balancing test when remedying a violation of
{36} Accordingly, we overrule Dillehay‘s first assignment of error.
{37} Having found no error prejudicial to Dillehay, in the particulars assigned and argued, we affirm the trial court‘s judgment.
Judgment Affirmed
PRESTON, P.J. and WILLAMOWSKI, J., concur.
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