Case Information
*1
[Cite as
State v. Haas
,
IN THE COURT OF APPEALS OF OHIO THIRD APPELLATE DISTRICT HENRY COUNTY
STATE OF OHIO,
PLAINTIFF-APPELLEE, CASE NO. 7-10-15
v. DUSTIN A. HAAS, O P I N I O N DEFENDANT-APPELLANT.
Appeal from Napoleon Municipal Court Trial Court No. TRC1000612AB Judgment Reversed
Date of Decision: May 29, 2012 APPEARANCES:
William F. Hayes for Appellant
Paul A. Skaff for Appellee
ROGERS, P.J.
{¶1} Defendant-Appellant, Dustin Haas (“Haas” or “Appellant”), appeals the judgment of the Napoleon Municipal Court convicting him of operating a vehicle under the influence pursuant to R.C. 4511.19(A)(1). On appeal, Haas argues that the trial court erred in overruling his motion to suppress, claiming that the police officer lacked the requisite reasonable articulable suspicion of a violation of R.C. 4511.66, prohibition of parking on a state highway. Finding that the officer did not have a reasonable articulable suspicion that Haas was parking on a state highway, we reverse the judgment of the trial court. In March 2010, Haas was cited for O.V.I. in violation of R.C.
4511.19(A)(1)(d) and parking on a highway in violation of R.C. 4511.66. In July 2010, Haas filed a motion to suppress all evidence related to the traffic stop as the police officer did not have a reasonable articulable suspicion to justify the traffic stop. After a hearing on the motion, the trial court overruled it. Subsequently, Haas entered a plea of no contest and was found guilty. The trial court imposed a sentence of 30 days in jail with 27 days suspended, a $400.00 fine and a six-month license suspension. The Appellant timely filed a notice of appeal. During the hearing on the motion to suppress, the following testimony
was heard. Deputy Sheriff Sean Wymer of Henry County testified that on March
16, 2010 at about 2:30 A.M., he was on duty in the village of McClure heading northbound on State Route 65; that he saw a vehicle stopped in the southbound lane of State Route 65 with its lights on and a female outside the vehicle; that the vehicle impeded the southbound lane of traffic; that as he passed the vehicle, it “pulled off” (Hearing Tr., p. 6); that he “turned on the vehicle” (Hearing Tr., p. 6); that as he approached the vehicle it turned onto a side street; that when he turned onto the side street, the vehicle was parked in the first driveway; that he passed the driveway, turned around, came up to the vehicle, and activated his overhead lights; that he and the auxiliary officer approached both sides of the vehicle; that someone exited the vehicle; that he identified the driver as Haas; that he detected an odor of alcohol; that he administered standard field sobriety tests; and, that the reason for the stop was the positioning of the vehicle in the roadway. On cross-examination, Deputy Wymer testified that the vehicle was
stopped inside the business and/or residential district of McClure; that he cited Haas for violation of R.C. 4511.66, stopping in the roadway, but that he was not familiar with that section of the code; that he was not aware that that section of the code requires the person stopped on the roadway to be outside of the business or residential district; that Haas was not outside of the business or residential district of McClure; that he pulled into the driveway behind the vehicle, blocked the vehicle in the driveway, and activated his overhead lights; that Haas was not free to leave at that point; and, that the auxiliary officer ordered a passenger to return to the vehicle. Lastly, Deputy Wymer testified that the reason he stopped Haas was to “investigate why he was parked on the roadway.” Hearing Tr., p.15. Alicia Reinbolt (“Alicia”) testified that on the night of March 16,
2010, she left an establishment and was walking on the sidewalk along State Route 65 in the town of McClure when she called Haas to pick her up. She testified that when Haas came to pick her up, he stopped on the side of the road, not in the lane of travel; that after she got in the car they went to a friend’s house; that when they pulled in the driveway, she saw the police parked behind them; that she attempted to exit the car, but that the police ordered her to get back in the car; and, that she did not feel free to leave due to the officer’s screaming. Haas testified that on the night of March 16, 2010, Alicia called him to
pick her up; that in doing so, he pulled his car off to the right side of State Route 65; that after he pulled away, he went to his friend’s house; that he turned into the driveway, turned off the vehicle, and Alicia and another passenger began to approach the house; that the officer’s vehicle pulled in the driveway behind him prohibiting him from exiting the driveway; that the officers yelled at Alicia and the other passenger to get back in the vehicle; and, that he did not feel free to leave.
{¶8} The parties stipulated as to the officer’s credentials; that the officer was in uniform in a marked cruiser during the time in question; and, that the event occurred in the village of McClure in the residential district. The trial court entered judgment overruling defendant’s motion to
suppress, finding that, based on the totality of the circumstances, “it was reasonable to view the conduct of the driver as being suspicious.” Judgment Entry, Docket No. 20. It is from this decision Haas appeals presenting the following assignment of error for our review.
Assignment of Error No. I
THE TRIAL COURT ERRED TO THE PREJUDICE OF DEFENDANT/APPELLANT IN FAILING TO SUPPRESS THE OBSERVATIONS OF, AND EVIDENCE OBTAINED BY, THE POLICE AS A RESULT OF THE UNCONSTITUTIONAL STOP OF THE APPELLANT’S VEHICLE. THE STOP WAS UNCONSTITUTIONAL AS THE OFFICER DID NOT HAVE A REASONABLE, ARTICULABLE BASIS TO STOP THE VEHICLE UNDER THE FOURTH AMENDMENT OF THE UNITED STATES CONSTITUTION. In his sole assignment of error, Haas asserts that the trial court’s
denial of his motion to suppress was unconstitutional according to the Fourth Amendment of the United States Constitution as the officer did not have a reasonable articulable suspicion to effect a stop. Specifically, because the evidence showed that Haas’s actions were lawful and could not have been unlawful, the search was unconstitutional. We agree. The State contends that the trial court did not err as the officer’s stop
was constitutional. Specifically, the State contends that the officer had probable cause or alternatively, reasonable articulable suspicion to justify the stop, based on an objective assessment of the officer’s observations. Further, the State argues that it would be unreasonable to expect every law enforcement officer to know the details of every traffic offense and to make an accurate, immediate judgment on the statute’s applicability to the present circumstance. We disagree. “Appellate review of a decision on a motion to suppress evidence
presents mixed questions of law and fact.”
State v. Dudli,
3d Dist. No. 3-05-13,
Section 14, Article I of the Ohio Constitution prohibit unreasonable searches and
seizures. Neither the Fourth Amendment to the United States Constitution nor
Section 14, Article I of the Ohio Constitution explicitly provides that violations of
its provisions against unlawful searches and seizures will result in the suppression
of evidence obtained as a result of such violation, but the United States Supreme
Court has held that the exclusion of evidence is an essential part of the Fourth
Amendment.
Mapp v. Ohio
, 367 U.S. 643, 649,
that a warrantless search and seizure falls within one of the exceptions to the
warrant requirement,
Xenia v. Wallace
,
his freedom of movement, the Fourth Amendment is implicated.
State v.
Stephenson,
3d Dist. No. 14-04-08,
intrusion,
the officer
must demonstrate ‘specific and articulable facts which, taken
together with rational inferences from those facts, reasonably warrant that
intrusion.’” (Emphasis added.)
State v. Mays
,
stopped Haas was to investigate why he was stopped on the roadway. Hearing Tr., pp. 9, 11, 15. Specifically, during cross-examination, the following exchange occurred:
[Appellant’s Attorney]: And the sole reason you stopped him was because he was stopped on the roadway, and you believe he was in violation of 4511.66? * * *
[Deputy Wymer]: Yes. (Emphasis added.) Hearing Tr., p. 11.
In its judgment entry, however, the trial court focused on the following:
Deputy Wymer observed a vehicle stopped on a state highway in the early hours of the morning. After he passed the vehicle he observed it pull away so he could reasonably conclude is (sic) was not disabled and it was occupied. The vehicle then pulled down a side street which caused the Deputy to make further inquiry.
The [c]ourt would find that given the totality of the circumstances it was reasonable to view the conduct of the driver as being suspicious, thus allowing the stop under the reasoning of Callarman . Consequently, the [c]ourt would find that there was sufficient credible evidence for Deputy Wymer to have formed a reasonable articulable suspicion to justify the temporary stop of the Haas vehicle to further his investigation into possible violations of the law. Judgment Entry, August 12, 2010. Although it is proper for a trial court to examine the collection of
factors rather than the individual factors, the trial court erred in considering factors
that Deputy Wymer did not testify to as contributing to the basis for the stop. The
trial court stated in its entry that “[t]he vehicle then pulled down a side street
which caused the Deputy to make further inquiry.” The deputy made no such
statement, and did not indicate that any conduct, other than the stopping on the
street, had caused him any concern. Since the record reflects that Deputy Wymer
decided to initiate the stop solely based on observing Haas parked on the roadway,
the additional factors such as Haas’s driving away from the scene, turning down a
side street, and the time of morning did not influence Deputy Wymer’s suspicion.
The trial court erred in considering these factors in evaluating the reasonableness
of the officer’s stop.
See State v. Hageman
,
‘unique’ interpretations regarding the appellate review of Fourth Amendment cases * * *.” We note first that the dissent cites no authorities for its position. Likewise, the dissent also fell into the trap of embellishing the deputy’s testimony, suggesting that the officer saw the vehicle “quickly turn onto a side street and immediately pull into the first available driveway, all before the officer had any opportunity to actually make a law enforcement stop or even activate his overhead lights.” Nowhere in the officer’s testimony is there any allegation that the defendant’s vehicle “quickly” turned onto a side street, or “immediately” pulled into the “first available driveway.” These allegations appear for the first time in the dissent’s characterization of the events. In fact, the deputy’s testimony was that he saw a person enter Appellant’s vehicle and that it had started to pull away before he came even with it. Further, the testimony demonstrates that Appellant passed a couple of cross streets before turning off the main route, and the uncontroverted testimony was that the driveway he entered was that of a friend. The dissent’s observations are immaterial anyway since the officer testified that he had already made his decision to stop the vehicle based on his mistaken notion that a violation of law had occurred, and that was his sole reason for the stop. No other facts or circumstances are material to our consideration of the officer’s reasonable articulable suspicion. If the officer had found other acts of Appellant to be suspicious he could have so testified. He did not. We must therefore base our ruling on the deputy’s decision to stop the vehicle based on the erroneous thought that he had observed a violation of law, without consideration of subsequent acts of Appellant, real or imagined.
{¶21} Under the circumstances of this case, and limiting our consideration to the matters articulated by the deputy, the proper analysis for determining whether the officer had a reasonable articulable suspicion to effectuate the traffic stop is to determine whether the alleged stopping on the roadway, alone, satisfied the probable cause and/or the reasonable articulable suspicion standard. R.C. 4511.66 prohibits parking on a highway and reads in pertinent
part:
Upon any highway outside a business or residence district no person shall stop, park, or leave standing any vehicle, whether attended or unattended, upon the paved or main traveled part of the highway if it is practicable to stop, park, or so leave such vehicle off the paved or main traveled part of said highway. (Emphasis added.). R.C. 4511.66. Deputy Wymer testified that he was not familiar with this section of
the code. Moreover, the parties stipulated, and the officer testified, that Haas’s vehicle was not stopped outside a business or residential district as required by the statute. The issue we must address, then, is whether an officer can have a reasonable articulable suspicion that the individual is engaging in criminal activity, when the behavior cited by the officer is not, in fact, nor could it be, illegal. We find that an officer cannot. This court has previously held that an officer lacked reasonable
articulable suspicion to initiate a traffic stop when the defendant clearly did not
violate either of two statutes which the officer testified provided the basis for his
suspicion.
State v. Young,
3d Dist. No. 13-03-52,
articulable suspicion of criminal activity to effectuate a traffic stop when the
defendant’s conduct did not violate the statute which provided the basis for the
officer’s suspicion. In
State v. Hageman,
Officer Viers observed Hageman turn
left onto High Street into the curb, rather than the inside, lane. 180 Ohio App.3d
640,
that when a defendant’s conduct does not facially violate the traffic statute which provides the sole basis for the officer’s alleged reasonable articulable suspicion, the stop is unconstitutional. In support of its decision, the trial court cites cases which stand for
the proposition that an officer’s reasonable articulable suspicion is not negated by
the failure to ultimately establish that a traffic offense occurred and to attain a
conviction. Stated in other words, courts have held that an officer’s reasonable
articulable suspicion does not require proof beyond a reasonable doubt that the
defendant has satisfied every element of the offense,
[1]
or that an officer adequately
predict the outcome of an arrestee’s legal defenses or ultimate conviction.
[2]
We
agree with this proposition. We assert, however, that there is a difference between
proving elements beyond a reasonable doubt and making a prima facie showing
that the defendant’s conduct has violated the elements of a statute on its face. In
order for a traffic stop to be constitutional, an officer must be able to articulate that
the defendant’s conduct violated a traffic law on its face.
[3]
The trial court cites
Bowling Green v. Godwin
, 110 Ohio St.3d 58,
L-09-1249,
violation of a traffic-control device that lacked proper authorization. This issue
was grounded in whether the officer had probable cause to effectuate a stop when
he had “no reason to doubt [the sign’s] enforceability.”
Godwin
at ¶17. In
Godwin
, everything within the purview of the officer at the time of the stop
indicated that Godwin had violated a traffic-control device. Therefore, there was
probable cause to effectuate a stop. The issue in
Zervos,
however, was whether an
officer had probable cause to effectuate a stop when Zervos’ conduct simply did
not violate the statute which provided the basis for the stop. Everything within the
officer’s purview at the time of the stop indicated that
Zervos
had in fact not
violated a traffic law. The dissent noted that “[b]ecause there was no offense and
there was no set of facts to prompt a reasonable suspicion that an offense had
occurred, there was no reason to stop appellant's vehicle.”
Id.
at ¶ 34. The
majority’s holding that there was reasonable suspicion is unfounded and is a
disconcerting expansion of the holding in
Godwin
, and we decline to follow it.
Lastly, the trial court relied on the Ninth Circuit’s analysis in
United
States v. Wallace
,
Judgment Reversed WILLAMOWSKI, J., concurs.
/jlr
SHAW, J., DISSENTS.
{¶36} In reversing the trial court, the majority goes far beyond the simple totality of the circumstances analysis necessary to decide this case, and instead, bases its decision upon its own “unique” interpretations regarding the appellate review of Fourth Amendment cases, police practices in general and the proper role of the arresting officer and the trial judge at a suppression hearing. I respectfully dissent in order to emphasize that I do not concur with the majority opinion as to any of these interpretations. In this case, the officer first observed the defendant’s vehicle to be
stopped with its lights on in the southbound lane of two lane State Route 65 within the village of McClure at 2:30 a.m. While the officer was passing by and turning his patrol car around to approach the defendant’s vehicle, the officer observed a person outside the defendant’s vehicle get into the vehicle, saw the vehicle pull away, quickly turn onto a side street and immediately pull into the first available driveway, all before the officer had any opportunity to actually make a law enforcement stop or even activate his overhead lights. In fact, the events apparently happened so quickly that the officer
following in his patrol car actually overshot the first driveway and had to proceed further down the street, turn around in another driveway and drive back to the first driveway. As the officer pulled his vehicle in front of the first driveway, he then activated his overhead lights and verbally addressed a female passenger who was exiting the defendant’s vehicle. Only then did he approach the defendant/operator of the vehicle. Assuming this was even a “law enforcement” stop, the majority cites
settled authority establishing that our determination of reasonable, articulable, suspicion in these cases is properly based upon the totality of the circumstances within the police officer’s knowledge. However, by either disregarding or ineffectively attempting to distinguish this authority, the majority elects instead to base its decision on the rather bizarre ruling that a court’s evaluation of a Terry stop is not to be based upon all of the facts and circumstances that the officer observed prior to the stop, but only upon those facts which the officer identifies as the primary reason for initiating the investigation. Thus, the majority notes that the officer in this case testified to at
least five different observations of the defendant’s conduct. These included seeing the defendant’s vehicle stopped in the roadway with its lights on, at 2:30 a.m., suddenly pulling away, quickly turning onto a side street, and immediately pulling into a driveway. Not mentioned was the additional observation of seeing someone outside the vehicle getting into the car while it was stopped in the roadway as the officer first drove by.
{¶41} However, because the officer testified at the suppression hearing that it was seeing the vehicle stopped in the roadway that led him to initiate the investigation, the majority rules that only that one circumstance of the vehicle being stopped in the roadway may be considered by this court (or the trial court) in determining whether all of the officer’s subsequent actions were warranted, notwithstanding that all of the observations testified to by the officer took place before any detention was initiated by the officer . This defies any authority or common sense. In other words, according to the majority, if an officer testifies into
the record as to fifty separate circumstances he personally observed, which in totality clearly establish a reasonable articulable suspicion, but then testifies that one of those circumstances was the primary reason he initiated the stop, the trial court (and the appellate court) are precluded from considering the remaining forty- nine circumstances testified to by the officer in ruling on the constitutionality of the stop. And if the one circumstance named by the officer does not, by itself, establish a specific statutory violation of law, the trial court is compelled to invalidate the stop, without considering anything else the officer may have observed prior to initiating the stop. More significantly perhaps, the majority effectively holds that any
trial judge conducting a suppression hearing, who is charged with making the legal determination as to whether all of the facts known to the police officer collectively constitute a reasonable, articulable, suspicion , of criminal activity or emergency sufficient to justify a Terry stop, is not permitted to consider anything other than the personal opinion of the police officer as to what he thinks caused him at the time to initiate the investigation that eventually led to the stop. In addition to being absurd on its face, the majority holding directly challenges the constitutional and statutory authority of trial courts and appellate courts in this state to consider and review all of the evidence properly before it in evaluating Fourth Amendment issues in criminal cases. Of course, the ruling of the majority that we must exclusively focus
upon the officer’s stated reasons, motives or personal state of mind instead of the
objective facts observed by the officer in Fourth Amendment cases, also happens
to conflict with numerous case decisions from other courts cited in the majority
opinion and elsewhere.
See
for example,
State v. Jamison
2nd Dist. No. 19357,
case because it finds that the officer failed to prove a valid violation of a criminal statute in order to justify investigating a car stopped in the public roadway at 2:30 a.m. All because the officer, who did have legitimate safety concerns as well as the correct traffic offense applicable to this situation in mind, was not aware of the exact physical boundaries of the village which created an exception to the offense. Again, the majority seems to acknowledge that this is a Terry situation involving a temporary investigative detention by the officer. The majority also seems to acknowledge in principle, the settled authority establishing that Terry does not require establishing probable cause that a criminal statute has been violated, but only that the officer establish a reasonable, articulable suspicion of criminal activity or emergency circumstance to warrant the temporary detention. Inexplicably, the majority does not follow this authority either and proceeds to rule that because the officer failed to establish that the defendant was in actual violation of the specific traffic offense the officer had in mind, everything else that the officer saw or did prior to the stop is invalid. As a result, the ruling of the majority on this issue is also wrong on its face, represents the personal views of the majority only and does not accurately reflect the authority contained in its own opinion. I personally concur with the trial judge that the totality of these
circumstances warranted the limited investigative detention of the officer in this case. Thus, I believe the assignment of error should be overruled and the judgment of the trial court should be affirmed. But whether we affirm or reverse, our decision should be based upon the proper standards of appellate review governing Fourth Amendment issues.
Notes
[1] See
e.g., Westlake v. Kaplysh
(1997),
[2]
State v. Zervos
, 6th Dist. No. L-0901249,
[3] See Judge Sherck’s dissent in State v. Nickelson , 6th Dist. No. H-00-036 (2001).