State v. McDonald ( 2017 )

[Cite as State v. McDonald, 2017-Ohio-9250.]
IN THE COURT OF APPEALS OF OHIO
THIRD APPELLATE DISTRICT
SENECA COUNTY
STATE OF OHIO,
CASE NO. 13-17-27
PLAINTIFF-APPELLEE,
v.
CORY D. MCDONALD, OPINION
DEFENDANT-APPELLANT.
Appeal from Seneca County Common Pleas Court
Trial Court No. 17 CR 0020
Judgment Affirmed
Date of Decision: December 26, 2017
APPEARANCES:
Danielle C. Kulik for Appellant
Stephanie J. Kiser for Appellee
Case No. 13-17-27
WILLAMOWSKI, J.
{¶1} Defendant-appellant Cory D. McDonald (“McDonald”) appeals the
judgment of the Seneca County Court of Common Pleas for denying his motion to
suppress. For the reasons set forth below, the judgment of the lower court is
affirmed.
Facts and Procedural History
{¶2} Patrolman Brett Bethel (“Bethel”) has worked for the Fostoria Police
Department since 2007. Tr. 4. On January 19, 2017, he was preparing to go on his
patrol when a detective reported to him that McDonald was suspected of
transporting narcotics. Tr. 6. Bethel was familiar with McDonald and had cited
him in the past for driving while his license was suspended. Tr. 14. The officers
who had been on the afternoon patrol shift also told Bethel that McDonald had been
spotted driving around town earlier that day in his regular vehicle. Tr. 10. In
response to this information, Bethel had dispatch check McDonald’s driving status
in the Law Enforcement Automated Data System (“LEADS”). Tr. 6. Bethel
consequently discovered that McDonald did not have a valid license at that time.
Tr. 6. Later, during his shift, Bethel was parked in a lot by the side of the road. Tr.
7. In between 11:30 and 11:45 p.m., Bethel saw McDonald drive past him in a blue
sedan. Tr. 14, 15. McDonald was the sole occupant of the vehicle. Tr. 6.
{¶3} Bethel testified that he was able to identify McDonald without difficulty
because he had encountered McDonald “numerous times throughout [his] career in
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Fostoria, specifically [McDonald] driving that specific vehicle.” Tr. 7. McDonald
also wore “distinctive eyeglasses,” which Bethel could see from his vantage point
on the side of the road. Tr. 7. Knowing that McDonald did not have a valid driver’s
license, Bethel decided to initiate a stop of McDonald’s vehicle. Tr. 8. As the result
of this stop, McDonald was found to be in possession of contraband and was
arrested. Doc. 2.
{¶4} On February 22, 2017, McDonald was charged with failure to comply
with an order or signal of a police officer in violation of R.C. 2921.331(B),
(C)(5)(a)(ii) and with possession of cocaine in violation of R.C. 2925.11(A),
(C)(4)(a). Doc. 2. On March 1, 2017, McDonald filed a motion to suppress. Doc.
20. The trial court held a hearing on this motion on April 27, 2017. Tr. 1. Bethel
testified as to his observations on the night of January 19, 2017, and stated that the
basis of the stop of McDonald’s vehicle was the fact that McDonald was driving
without a valid driver’s license. Tr. 5-8, 12.
{¶5} On cross examination, Bethel admitted that his police report
characterized his request for dispatch to check McDonald’s driver status as
“random.” Tr. 11. He indicated that this meant that this check was not part of work
done for the drug task force. Tr. 11-12. On recross examination, the Defense again
questioned Bethel about his use of the word “random” in the police report. Tr. 20.
This exchange occurred as followed:
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Q. Random to me means like you picked his name out of a hat.
You say—you said to the prosecutor this was a random running.
How did you choose him to run then?
A. Because I was informed by—I was given intel by the drug
detective as well as the road units from afternoon shift, but it was
not for anything specific at that time, just be on the lookout, he’s
driving without a license.
Tr. 20. In closing arguments, the Defense argued that this was a random check of
McDonald’s driving status that was conducted in violation of the Fourth
Amendment. Tr. 23.
{¶6} On May 10, 2017, the trial court overruled McDonald’s motion to
suppress. Doc. 41. The trial court found that the traffic stop was based upon
probable cause because Bethel knew that McDonald did not have a valid driver’s
license at the time that he saw McDonald driving. Doc. 41. On August 17, 2017,
McDonald entered a plea of no contest to three charges against him: one count of
failure to comply with an order or signal of a police officer in violation of R.C.
2921.331(B), (C)(5)(a)(ii); one count of possession of cocaine in violation of R.C.
2925.11(A), (C)(4)(b); and one count of tampering with evidence in violation of
R.C. 2921.12(A)(1), (B). Doc. 47, 48. McDonald was sentenced on September 8,
2017. Doc. 50. McDonald then filed his notice of appeal on September 14, 2017.
Doc. 52.
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Assignment of Error
{¶7} In this appeal, McDonald challenges the trial court’s decision to deny
his motion to suppress and raises one assignment of error, which reads as follows:
A trial court commits prejudicial error when an officer admits
that he was looking for a reason to stop an individual in lieu of
obtaining a search warrant.
In this assignment of error, McDonald puts forward three arguments. First, he
alleges that Bethel used LEADS inappropriately to run a driver’s license status
check in this case. Second, he points to a portion of Bethel’s police report that
characterizes the driver’s license status check in this case as “random.” He claims
that such random driver’s license checks are not permitted under the Fourth
Amendment. Third, McDonald argues that the stop of his car was pretextual as he
believes the only purpose of stopping his vehicle was to determine whether he was
transporting narcotics. For these reasons, McDonald requests that this Court reverse
the trial court’s decision to overrule his motion to suppress.
Legal Standard
{¶8} The Fourth Amendment to the United States Constitution guarantees
“[t]he right of the people to be secure in their persons, houses, papers, and effects,
against unreasonable searches and seizures * * *.” Fourth Amendment, United
States Constitution. The Ohio Constitution offers a parallel provision to the Fourth
Amendment of the Federal Constitution that has been held to afford the same level
of protection as the United States Constitution. State v. Hoffman, 141 Ohio St.3d
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428, 2014-Ohio-4795, 25 N.E.3d 993, ¶ 11, citing State v. Robinette, 80 Ohio St. 3d
234, 685 N.E.2d 762 (1997). “The primary purpose of the Fourth Amendment is to
impose a standard of reasonableness upon the exercise of discretion by law
enforcement officers in order to ‘safeguard the privacy and security of individuals
against arbitrary [governmental] invasions.’” State v. Carlson, 102 Ohio App. 3d
585, 592, 657 N.E.2d 591, 592 (9th Dist.1995), quoting Delaware v. Prouse, 440
U.S. 648, 99 S. Ct. 1391, 59 L. Ed. 2d 660 (1979). “The Fourth Amendment does not
proscribe all state-initiated searches and seizures; it merely proscribes those which
are unreasonable.” Florida v. Jimeno, 500 U.S. 248, 250, 111 S. Ct. 1801, 114
L. Ed. 2d 297 (1991), citing Katz v. United States, 389 U.S. 347, 360, 88 S. Ct. 507,
19 L. Ed. 2d 576 (1967). Thus, “[t]he touchstone of the Fourth Amendment is
reasonableness.” Id.
{¶9} A reviewing court must first determine whether a search or seizure
within the meaning of the Fourth Amendment occurred. “In determining whether a
particular encounter constitutes a ‘seizure,’ and thus implicates the Fourth
Amendment, the question is whether, in view of all the circumstances surrounding
the encounter, a reasonable person would believe he or she was ‘not free to leave,’
or ‘not free to decline the officers’ requests or otherwise to terminate the
encounter.’” State v. Westover, 2014-Ohio-1959, 10 N.E.3d 211 (10th Dist.),
quoting United States v. Mendenhall, 446 U.S. 544, 554, 100 S. Ct. 1870, 64 L. Ed. 2d
497 (1980) and Florida v. Bostick, 501 U.S. 429, 439, 111 S. Ct. 2382, 115 L.Ed.2d
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389 (1991). Accordingly, a police stop of a motor vehicle and the resulting
detention of its occupants has been held to be a seizure under the Fourth
Amendment. Prouse at 653, citing United States v. Martinez-Fuerte, 428 U.S. 543,
556-558, 96 S. Ct. 3074, 3082-3083, 49 L. Ed. 2d 1116 (1976); United States v.
Brignoni-Ponce, 422 U.S. 873, 878, 95 S. Ct. 2574, 2578, 45 L. Ed. 2d 607 (1975).
{¶10} Under the Fourth Amendment, law enforcement can conduct two
types of constitutionally permissible traffic stops: (1) investigatory traffic stops and
(2) traffic stops based on probable cause. State v. Andrews, 57 Ohio St. 3d 86, 565
N.E.2d 1271 (1991); State v. Mays, 119 Ohio St. 3d 406, 2008-Ohio-4539, 894
N.E.2d 1204, ¶ 22. For an investigatory traffic stop to be valid, law enforcement
must have a reasonable and articulable suspicion, under the totality of the
circumstances, that a crime has been or is being committed. State v. Shaffer, 2013-
Ohio-3581, 4 N.E.3d 400, ¶ 18 (3d Dist.), quoting 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). For the second type of traffic stop, law enforcement
must have probable cause. “Probable cause ‘means less than evidence which would
justify condemnation,’ so that only the ‘probability, and not a prima facie showing
of criminal activity is the standard of probable cause.’” State v. Duvernay, 2017-
Ohio-4219, --- N.E.3d ---, ¶ 27 (3d Dist.), quoting State v. Gonzales, 3d Dist. Seneca
Nos. 13-13-31 and 13-13-32, 2014-Ohio-557, ¶ 18. “This Court has previously
recognized that probable cause for a traffic stop is provided when an officer had
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probable cause to believe that a traffic violation has occurred or was occurring.”
State v. Blandin, 3d Dist. Allen No. 1-06-107, 2007-Ohio-6418, ¶ 43, citing State v.
Phillips, 3rd Dist. No. 8-04-25, 2006-Ohio-6338, at ¶ 18 (rev’d on other grounds by
State v. Mays, 119 Ohio St. 3d 406, 2008-Ohio-4539, 894 N.E.2d 1204, ¶ 1).
{¶11} Random or pretextual traffic stops of vehicles that lack the minimum
objective justification of reasonable suspicion are not permissible under the Fourth
Amendment. State v. Chatton, 11 Ohio St. 3d 59, 61, 463 N.E.2d 1237, 1239 (1984)
(holding a random stop without reasonable suspicion is impermissible to “to check
the validity of the operator’s driver’s license and the vehicle’s registration.”), citing
Prouse, supra. If the officer does make a traffic stop with the required level of
objective justification,
the stop is not unreasonable under the Fourth Amendment to the
United States Constitution even if the officer had some ulterior
motive for making the stop, such as a suspicion that the violator
was engaging in more nefarious criminal activity.
Dayton v. Erickson, 76 Ohio St. 3d 3, 11, 665 N.E.2d 1091 (1996).
{¶12} “Under appellate review, motions to suppress present ‘mixed
questions of law and fact.’” State v. Kerr, 3d Dist. Allen No. 1-17-01, 2017-Ohio-
8516, ¶ 18, quoting State v. Yeaples, 180 Ohio App. 3d 720, 2009-Ohio-184, 907
N.E.2d 333, ¶ 20 (3d Dist.).
When considering a motion to suppress, the trial court assumes
the role of trier of fact and is therefore in the best position to
resolve factual questions and evaluate the credibility of witnesses.
Consequently, an appellate court must accept the trial court's
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findings of fact if they are supported by competent, credible
evidence. Accepting these facts as true, the appellate court must
then independently determine, without deference to the
conclusion of the trial court, whether the facts satisfy the
applicable legal standard.
(Citations omitted.) State v. James, 2016-Ohio-7262, 71 N.E.3d 1257, ¶ 8 (3d
Dist.), quoting State v. Burnside, 100 Ohio St. 3d 152, 2003-Ohio-5372, 797 N.E.2d
71, ¶ 8.
Legal Analysis
{¶13} In this appeal, the Defense makes three key assertions. We will
address each in turn. First, the Defense argues that Bethel inappropriately accessed
McDonald’s driver’s license status in LEADS. Unauthorized use of LEADS is
prohibited under Ohio law. R.C. 2913.04(C). “Police officers may only run queries
and use the information for a legitimate law enforcement purpose.” State v. Moning,
1st Dist. Hamilton No. C-010315, 2002-Ohio-5097, ¶ 2. In this case, Bethel’s
testimony makes clear that his LEADS check on McDonald’s driver’s license status
was for a “valid law enforcement purpose.” State v. Garn, 2017-Ohio-2969, ---
N.E.3d ---, ¶ 43 (5th Dist.). Bethel was informed by a detective that McDonald was
under investigation for drug trafficking and that McDonald had been seen driving
around the area during the previous patrol shift. Tr. 6. In response, Bethel, who
had cited McDonald in the past for driving while his license was suspended,
investigated McDonald’s driver’s license status. This was a legitimate use of
LEADS as Bethel was using law enforcement resources for the purpose of
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furthering the objective of law enforcement. For this reason, Bethel’s use of
LEADS was not inappropriate as the appellant alleges.
{¶14} Second, the Defense argues that the driver’s license status check was
random and, therefore, impermissible under Delaware v. Prouse, supra. In support
of this argument, the Defense points to Bethel’s police report, which characterized
the driver’s status check as “random.”1 In making this assertion, the appellant errs
by equating a driver’s license status check in LEADS with the traffic stop of
McDonald’s vehicle. Under Prouse, law enforcement is not permitted to make
random traffic stops without reasonable suspicion for the purpose of checking
whether the driver is properly licensed. Id. at 657. In this case, Bethel did not make
a random traffic stop. Rather, Bethel had probable cause to believe that McDonald
was committing a traffic violation because, at the time of the traffic stop, Bethel had
actual knowledge that McDonald was operating a motor vehicle without a valid
driver’s license.
{¶15} Third, the Defense argues that this traffic stop was a pretext for
investigating whether McDonald was involved in the transportation of illegal
narcotics and was, therefore, impermissible. In this case, Bethel knew who
McDonald was and what type of vehicle McDonald drove. On the night of January
1
Bethel’s testimony at the suppression hearing indicates that he characterized this driver’s license status
check as “random” because it was not part of a systematic examination of driver’s licenses or performed by
the drug task force agent who was assigned to the formal investigation into McDonald’s suspected drug
trafficking activities. Tr. 6, 11. Bethel, however, did not examine McDonald’s driver’s license status in the
absence of any rationale or through a process of total coincidence.
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19, 2017, Bethel saw McDonald’s car passing his patrol car and was able to identify
McDonald as the driver of that vehicle. Since Bethel knew that McDonald did not
have a valid driver’s license, he knew that McDonald was committing a traffic
violation. Bethel’s stop was not, therefore, pretextual as he performed a traffic stop
to investigate criminal behavior that he had witnessed. Even if Bethel suspected
that McDonald was in the process of committing other crimes, these subjective
beliefs do not negate the fact that Bethel was undertaking, at the time he initiated
this traffic stop, an objectively valid investigation into criminal activity that he had
observed firsthand. For these reasons, we find that this traffic stop was not
unreasonable and was performed in compliance with the dictates of the Fourth
Amendment.
Conclusion
{¶16} After examining the facts in the record, we find that the trial court did
not err in denying McDonald’s motion to suppress. Thus, McDonald’s sole
assignment of error is overruled. Having found no error prejudicial to the appellant
in the particulars assigned and argued, the judgment of the Court of Common Pleas
of Seneca County is affirmed.
Judgment Affirmed
PRESTON, P.J. and SHAW, J., concur.
/hls
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