STATE OF OHIO, PLAINTIFF-APPELLEE, v. KYLE B. HANCOCK, DEFENDANT-APPELLANT.
CASE NO. 2-15-17
IN THE COURT OF APPEALS OF OHIO THIRD APPELLATE DISTRICT AUGLAIZE COUNTY
April 25, 2016
2016-Ohio-2671
Appeal from Auglaize County Municipal Court, Trial Court No. 2015 TRC 05570
Kenneth J. Rexford for Appellant
Nick Catania for Appellee
{¶1} Defendant-appellant, Kyle B. Hancock (“Hancock“), brings this appeal from the judgment of the Auglaize County Municipal Court, which overruled his motion to suppress and found him guilty of OVI (operation of a vehicle while under the influence of alcohol, a drug of abuse, or a combination of them), in violation of
Factual and Procedural Background
{¶2} In the early morning hours of July 26, 2015, the Wapakoneta Police Department‘s dispatcher received a call from an employee at a McDonald‘s restaurant. The employee identified herself and reported that there was a drunk driver in their drive-through lane. She then described the subject vehicle and indicated that a couple of customers had complained about the individual and that they did not feel comfortable with him being on the road. She additionally stated that the individual almost hit the building.
{¶3} Patrolman Jim Cox (“Patrolman Cox“), from the Wapakoneta Police Department, was sent to investigate. When Patrolman Cox arrived at the scene, the vehicle described to him was still in the drive-through lane. Patrolman Cox did not make any personal observations of the driver operating his vehicle under the influence. He approached the vehicle from the passenger side and asked the driver to pull into a parking spot for further investigation.
THE TRIAL COURT ERRED BY DENYING MR. HANCOCK‘S MOTION TO SUPPRESS, IN VIOLATION OF HIS RIGHTS UNDER THE OHIO AND UNITED STATES CONSTITUTIONS.
Standard of Review
{¶5} An appellate review of the trial court‘s decision on a motion to suppress involves a mixed question of law and fact. State v. Burnside, 100 Ohio St.3d 152, 2003-Ohio-5372, 797 N.E.2d 71, ¶ 8; State v. Norman, 136 Ohio App.3d 46, 51, 735 N.E.2d 953 (3d Dist.1999). We will accept the trial court‘s factual findings if they are supported by competent, credible evidence because the “evaluation of evidence and the credibility of witnesses” at the suppression hearing are issues for the trier of fact. State v. Mills, 62 Ohio St.3d 357, 366, 582 N.E.2d 972 (1992); Burnside, 2003-Ohio-5372, at ¶ 8; Norman, 136 Ohio App.3d at 51. But we must independently determine, without deference to the trial court, whether these factual findings satisfy the legal standard as a matter of law because “the application of the law to the trial court‘s findings of fact is subject to a de novo standard of review.” Norman, 136 Ohio App.3d at 52; Burnside, 2003-Ohio-5372, at ¶ 8.
Analysis
{¶6} The sole issue raised on appeal is the constitutionality of the traffic stop.1 Hancock‘s contention that the traffic stop was unconstitutional stems from the fact that Patrolman Cox stopped him without a warrant.
{¶7} The
{¶8} A warrantless vehicle stop is constitutionally valid “if an officer has a reasonable and articulable suspicion that a motorist has committed, is committing, or is about to commit a crime.” Mays at ¶ 7. A reasonable and articulable suspicion exists when there are “specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion.” State v. Bobo, 37 Ohio St.3d 177, 178, 524 N.E.2d 489 (1988), quoting Terry v. Ohio, 392 U.S. 1, 21-22, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). We judge the facts under an objective standard of “a man of reasonable caution” in like circumstances. Bobo at 178-179.
{¶9} It is important to note that while generally the inquiry is into the facts known by the officer who initiated the stop, “when an investigative stop is made in sole reliance upon a police dispatch, different considerations apply.” (Emphasis added.) Weisner at 297. The Ohio Supreme Court reasoned that
A police officer need not always have knowledge of the specific facts justifying a stop and may rely, therefore, upon a police dispatch or flyer. United States v. Hensley (1985), 469 U.S. 221, 231, 105 S.Ct. 675, 681, 83 L.Ed.2d 604, 613. This principle is rooted in the notion that “effective law enforcement cannot be conducted unless police officers can act on directions and information transmitted by one officer to another and that officers, who must often act swiftly, cannot be expected to cross-examine their fellow officers about the foundation for the transmitted information.” Id. at 231, 105 S.Ct. at
682, 83 L.Ed.2d at 614, quoting United States v. Robinson (C.A.9, 1976), 536 F.2d 1298, 1299. When a dispatch is involved, therefore, the stopping officer will typically have very little knowledge of the facts that prompted his fellow officer to issue the dispatch. The United States Supreme Court has reasoned, then, that the admissibility of the evidence uncovered during such a stop does not rest upon whether the officers relying upon a dispatch or flyer “were themselves aware of the specific facts which led their colleagues to seek their assistance.” It turns instead upon “whether the officers who issued the flyer” or dispatch possessed reasonable suspicion to make the stop. (Emphasis sic.) Id. at 231, 105 S.Ct. at 681, 83 L.Ed.2d at 613 (discussing and applying Whiteley v. Warden, Wyoming State Penitentiary [1971], 401 U.S. 560, 91 S.Ct. 1031, 28 L.Ed.2d 306, to reasonable suspicion in the context of a police flyer). Thus, “[i]f the flyer has been issued in the absence of a reasonable suspicion, then a stop in the objective reliance upon it violates the Fourth Amendment .” Hensley, 469 U.S. at 232, 105 S.Ct. at 682, 83 L.Ed.2d at 614.
(Emphasis sic.) Id. at 297. The Ohio Supreme Court clarified that “where an officer making an investigative stop relies solely upon a dispatch, the state must demonstrate at a suppression hearing that the facts precipitating the dispatch justified a reasonable suspicion of criminal activity.” (Emphasis sic.) Id. at 298.
{¶10} Therefore, in a situation such as here, where the information possessed by the dispatcher is based solely on an informant‘s tip, we must evaluate “the weight and reliability due that tip.” Weisner, 87 Ohio St.3d at 299. “The appropriate analysis, then, is whether the tip itself has sufficient indicia of reliability to justify the investigative stop.” Id. “Factors considered ‘highly relevant in determining the value of [the informant‘s] report’ are the informant‘s veracity, reliability, and basis of knowledge.” Id., quoting
{¶11} Failure to call the dispatcher or the informant to testify at the suppression hearing is not fatal to the state‘s burden. See Weisner at 298-299. The court can consider the police officer‘s testimony “in assessing whether the facts known to the dispatcher were sufficient to justify the stop,” where no one argues that the officer‘s testimony is unreliable. Id. Accordingly, in Weisner the Ohio Supreme Court found the state‘s burden satisfied based on the police officer‘s testimony about the facts known to the dispatcher. The informant in that
{¶12} This case is similar to Weisner in that Patrolman Cox relied solely on the dispatch in initiating the stop, and the dispatching officer or the informant did not testify at the suppression hearing. We must therefore evaluate the weight and credibility of the informant‘s tip based on the information presented at the suppression hearing.
{¶13} During the hearing, the State offered testimony of Patrolman Cox and submitted one exhibit, which was a CD with audio recording of the phone call received by the dispatcher.2 (See Tr. of Proceedings (“Tr.“); State‘s Ex. A.) The contents of the recording indicate that the caller was a McDonald‘s employee, who identified herself by her first and last name, provided her phone number, and said, “I have a customer in my drive-through that is extremely drunk and he almost hit our building.” (State‘s Ex. A.) She further stated, “we had a couple of complaints about him” from people in the line who said they were uncomfortable with him
{¶14} Hancock raises several issues in his argument that the information provided to the dispatch did not have sufficient indicia of reliability to justify the warrantless stop. First, he suggests that “almost striking a restaurant while in a drive-through lane” is not necessarily indicative of “being drunk.” (App‘t Br. at 3, 10-11.) But no law is provided to suggest that it is an error to consider an act of almost hitting a restaurant as indicia of being under the influence. Nor was there any evidence provided in the trial court to show that almost striking a building is a normal occurrence for every driver in the drive-through lane, as Hancock argues on appeal. (See id.)
{¶15} Second, Hancock speculates that the identified employee of McDonald‘s had no personal knowledge of Hancock being under the influence but instead relied on information provided to her by other unidentified customers in the drive-through lane. He thus suggests that we should analyze the information provided to the dispatcher as if it came from an anonymous informant. (Id. at 3, 9.) Once again, no evidence or law is offered in support of this position. The Ohio Supreme Court did not classify an informant as anonymous based on his or
{¶16} Third, Hancock claims that the tipster in this case was not reliable and should not have been given weight because Patrolman Cox admitted that sometimes tips from McDonald‘s have proven to not be reliable. (App‘t Br. at 3, 8-9.) Hancock mischaracterizes and misapplies Patrolman Cox‘s testimony. There was no testimony that the tipster in this case, the particular employee of the specific McDonald‘s in Wapakoneta, had ever provided unreliable information. There was, however, testimony that in general, most complaints from McDonald‘s employees had proven to be reliable, with some exceptions for unreliable tips. (Tr. at 4, 7.) Therefore, we reject a suggestion that the tipster was unreliable, where there is no evidence challenging this tipster‘s reliability.
{¶17} Fourth, Hancock asserts that this case should be reversed based on the reasoning applied by the United States Supreme Court in Navarette v. California, 134 S.Ct. 1683, 188 L.Ed.2d 680 (2014). (Id. at 3, 6-8.) But the reasoning and holding of Navarette do not lend support to Hancock‘s position. In
{¶18} Unlike Navarette, this case presents an identified citizen informant, who, according to Weisner, is credited with greater reliability. See Weisner, 87 Ohio St.3d at 299. The informant was relaying the events as they were occurring, while keeping the suspected driver in her drive-through lane. Thus, the immediacy of her tip affords reliability. See id. at 302; see also Navarette at 1683 (suggesting that “the caller reported the incident soon
{¶19} We hold that the trial court properly analyzed the totality of the circumstances in this case and found that the informant‘s report had sufficient indicia of reliability to justify the investigative stop. We reject Hancock‘s arguments that would have us require evidence, rather than a reasonable and articulable suspicion, of criminal activity to justify the investigative stop. See Navarette at 1687 (“the level of suspicion the standard requires is ‘considerably less than proof of wrongdoing by a preponderance of the evidence’ “), quoting
Conclusion
{¶20} Having reviewed the arguments, the briefs, and the record in this case, we find no error prejudicial to Appellant in the particulars assigned and argued. The judgment of the Auglaize County Municipal Court is therefore affirmed.
Judgment Affirmed
SHAW, P.J. and ROGERS, J., concur.
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