N. Royalton v. Turkovich , 2013 Ohio 4701 ( 2013 )

[Cite as N. Royalton v. Turkovich, 2013-Ohio-4701.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 99448
CITY OF NORTH ROYALTON
PLAINTIFF-APPELLEE
vs.
JARED A. TURKOVICH
DEFENDANT-APPELLANT
JUDGMENT:
AFFIRMED
Criminal Appeal from the
Parma Municipal Court
Case No. 12TRCO6311
BEFORE: Rocco, J., Celebrezze, P.J., and S. Gallagher, J.
RELEASED AND JOURNALIZED: October 24, 2013
-i-
ATTORNEYS FOR APPELLANT
Joseph F. Salzgeber
Arthur E. Foth, Jr.
Foth & Foth Co., L.P.A.
11221 Pearl Road, Lower Level
Strongsville, Ohio 44136-3344
ATTORNEY FOR APPELLEE
James J. McDonnell
North Royalton City Prosecutor
75 Public Square
Suite 700
Cleveland, Ohio 44113-2001
KENNETH A. ROCCO, J.:
{¶1} After entering a no contest plea to a charge of violating R.C. 4511.19(A)(2)
(refusal to submit to a blood alcohol content, i.e., a “BAC,” analysis), defendant-appellant
Jared A. Turkovich appeals from the Parma Municipal Court’s decision to deny his
motion to suppress evidence.
{¶2} Turkovich presents one assignment of error. He asserts that the municipal
court improperly denied his motion because the police officer lacked a reasonable
suspicion that Turkovich was engaging in criminal activity that would justify a traffic stop
of his vehicle.
{¶3} Upon a review of the record, this court disagrees. Consequently,
Turkovich’s assignment of error is overruled, and the municipal court’s decision is
affirmed.
{¶4} North Royalton police officer Steve Zahursky testified at the hearing on
Turkovich’s motion to suppress evidence. Zahursky stated he received a call from his
police dispatcher that “Parma Police received a complaint of a motorcycle driver * * *
laying [his] bike down near State Road [and] Pleasant Valley area.” The North Royalton
dispatcher informed Zahursky that Parma police had relayed the complainant’s call, and
that the complainant indicated that she was following the vehicle, which she described as
a “red and black Harley Davidson” that was traveling southbound on State Road.
{¶5} After turning onto State Road from Royalwood Road, Zahursky drove his
patrol car northbound, and, a few minutes later, as he approached the intersection of
Wallings Road, he observed a motorcycle that matched the complainant’s description.
The motorcycle was proceeding southbound and turned west onto Wallings. Zahursky
turned onto Wallings Road behind it.
{¶6} Zahursky testified he remained approximately 15 to 20 feet to the rear, and
observed the motorcycle driver “maneuvering in a weaving course and at times * * *
abruptly jerking back and forth a little bit.” After Zahursky saw this action occur “about
four to five times,” he initiated a traffic stop of the motorcycle.
{¶7} The motorcyclist, identified as Turkovich, “had an obvious odor of alcoholic
beverage emanating from him.” Zahursky also stated that Turkovich’s “eyes were
bloodshot, red and glassy, his speech was slurred and mush mouthed.” Zahursky
eventually issued four citations to Turkovich: (1) operating a vehicle while intoxicated in
violation of R.C. 4511.19(A)(1)(a); (2) BAC refusal in violation of 4511.19(A)(2); (3)
weaving in violation of North Royalton Ordinances 432.38(A); and (4) failure to have
reasonable control of his vehicle in violation of R.C. 4511.202.
{¶8} Turkovich filed a motion to suppress evidence. At the hearing on the
motion, the municipal court was presented with Zahursky’s testimony and with the
testimony of one defense witness. Subsequently, the municipal court denied Turkovich’s
motion to suppress evidence.
{¶9} Turkovich entered a plea of no contest to the BAC charge in exchange for the
city’s dismissal of the remaining charges. The municipal court accepted his plea,
dismissed the other charges, and found Turkovich guilty of the BAC charge. The
sentence Turkovich received was stayed pending the outcome of this appeal.
{¶10} Turkovich presents the following as his sole assignment of error.
I. The trial court committed reversible error by denying
Defendant’s motion to suppress the evidence, where the police officer
did not have reasonable suspicion or probable cause to initiate the
traffic stop of Defendant’s vehicle and the stop therefore violated the
Fourth Amendment to the Unites States Constitution.
{¶11} Turkovich argues that the municipal court erred in denying his motion to
suppress because Zahursky lacked reasonable suspicion to stop and detain him.
Turkovich asserts that, during the short time Zahursky followed him, he did not commit
any traffic infractions worthy of justifying a traffic stop. This court finds that the trial
court’s decision was correct.
{¶12} Appellate review of a motion to suppress presents a mixed question of law
and fact. State v. Burnside, 100 Ohio St.3d 152, 2003-Ohio-5372, 797 N.E.2d 71, ¶ 8.
In ruling on a motion to suppress, a trial court assumes the role of trier of fact and is in
the best position to resolve questions of fact and to evaluate witness credibility. State v.
Dunlap, 73 Ohio St.3d 308, 314, 652 N.E.2d 988 (1995). A reviewing court, therefore,
must defer to the trial court’s factual findings if competent, credible evidence exists to
support those findings. Burnside at ¶ 8. However, once an appellate court has accepted
those facts as true, it then must independently determine as a matter of law whether the
facts as found by the trial court met the applicable legal standard. Burnside at ¶ 9. That
is, application of the law to the trial court’s findings of fact is subject to a de novo
standard of review. Id.{¶13} Prior to initiating a stop, a “police officer must be able to point to specific
and articulable facts which, taken together with rational inferences from those facts,
reasonably warrant [the] intrusion.” Terry v. Ohio, 392 U.S. 1, 21, 88 S.Ct. 1868, 20
L.Ed.2d 889 (1968). Determination of whether reasonable suspicion exists in any given
case requires review of the totality of the surrounding facts and circumstances. State v.
Bobo, 37 Ohio St.3d 177, 524 N.E.2d 489 (1988), paragraph one of the syllabus. Those
circumstances must be viewed through the eyes of the reasonable and prudent police
officer on the scene who must react to events as they unfold. State v. Andrews, 57 Ohio
St.3d 86, 89, 565 N.E.2d 1271 (1991).
{¶14} According to the record in this case, the traffic stop was based in part on a
tip that a motorcyclist had been seen by another driver “laying [his] bike down near [the]
State Road [and] Pleasant Valley” Road intersection. The other driver suspected that the
motorcyclist was driving under the influence of alcohol.
{¶15} The Ohio Supreme Court has held that a telephone tip, even standing alone,
can create reasonable suspicion justifying an investigative stop as long as the tip has
sufficient indicia of reliability. Maumee v. Weisner, 87 Ohio St.3d 295, 720 N.E.2d 507(1999), paragraph one of the syllabus. Thus, under such circumstances, the
determination of reasonable suspicion is limited to an examination of the weight and
reliability of the tip. Id. The most important factors in determining the reliability of an
informant’s report are “the informant’s veracity, reliability, and basis of knowledge.”
Id., citing Alabama v. White, 496 U.S. 325, 328, 110 S.Ct. 2412, 110 L.Ed.2d 301 (1990).
{¶16} In assessing the reliability of the informant’s tip, the Weisner court noted
that it has generally been accepted that among the classes of informants, the identified
citizen informant is the most reliable; the court explained at 300:
* * * [A]n anonymous informant is comparatively unreliable and his
tip, therefore, will generally require independent police corroboration.
Alabama v. White, 496 U.S. at 329, 110 S.Ct. at 2415, 110 L.Ed.2d at 308. *
* * [On the other hand,] an identified citizen informant may be highly
reliable and, therefore, a strong showing as to the other indicia of reliability
may be unnecessary: “If an unquestionably honest citizen comes forward
with a report of criminal activity — which if fabricated would subject him
to criminal liability — [the Unites States Supreme Court has] found
rigorous scrutiny of the basis of his knowledge unnecessary.” Illinois v.
Gates, 462 U.S. [213,] 233-234, 103 S.Ct. [2317,] 2329-2330, 76 L.Ed.2d
[527,] 545.
{¶17} Particularly when the informant provides identifying information, including
his or her name and phone number, and the informant remains on the scene, making
face-to-face contact a possibility, police have sufficient information to classify that
informant as an identified citizen. Id. In this case, the Parma police department
contacted the North Royalton police department and put the North Royalton dispatcher on
the line with another driver; the driver then repeated to the North Royalton police the
information she initially gave to the Parma police. The driver identified herself, stated
her observations, and stated that she continued to follow the motorcycle as it traveled
southbound from the intersection of State and Pleasant Valley Roads.
{¶18} Zahursky testified at the suppression hearing that he received all of this
information from his dispatcher. The informant provided a description of the
motorcycle. The informant indicated her concern that the cyclist was intoxicated because
she had seen him “lay down” his bike on the pavement near the intersection of State Road
and Pleasant Valley Road. Moreover, the informant provided the motorcycle’s general
location because her concern prompted her to continue to follow it for several miles as it
traveled southbound from that intersection. The information she provided was consistent
with the color of and the location of Turkovich’s motorcycle when Zahursky spotted it.
Euclid v. Jones, 8th Dist. Cuyahoga No. 97868, 2012-Ohio-3960; see also State v. Boiani,
8th Dist. Cuyahoga No. 98314, 2013-Ohio-1342. Under these circumstances, the
informant was an identified informant with information reliable enough to warrant the
stop, especially in light of what Zahursky observed of Turkovich’s driving after Zahursky
began following the motorcycle. State v. Grimmett, 2d Dist. Greene No. 2004 CA 24,
2005-Ohio-126; compare State v. Grigoryan, 8th Dist. Cuyahoga No. 93030,
2010-Ohio-2883.
{¶19} The transcript of the suppression hearing indicates Zahursky provided a
visual illustration to the municipal court by mimicking the motorcycle driver’s hands on
the handlebars. Zahursky testified that he saw Turkovich “maneuvering in a weaving
course,” and “abruptly jerking back and forth” as he proceeded westbound on Wallings
Road. From these observations, Zahursky believed the motorcyclist did not have
“reasonable control” over the vehicle; indeed, a violation of R.C. 4511.202(A) was one of
the citations Zahursky issued to Turkovich. Zahursky, therefore, had reasonable
suspicion to investigate further and to initiate a traffic stop of Turkovich.
{¶20} The municipal court was in the best position to determine the reliability of
Zahursky’s testimony in contrast to the testimony of the defense witness. Under the
circumstances presented in this case, the municipal court could reasonably have
concluded that Turkovich’s friend followed him home from the bar due to a concern that
Turkovich would have difficulty driving in his inebriated condition.
{¶21} Because Zahursky had reasonable suspicion for the stop, the municipal court
committed no error in denying Turkovich’s motion to suppress evidence. Turkovich’s
assignment of error, accordingly, is overruled.
{¶22} The municipal court’s decision is affirmed.
It is ordered that appellee recover from appellant costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the municipal
court to carry this judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of
the Rules of Appellate Procedure.
__________________________________
KENNETH A. ROCCO, JUDGE
FRANK D. CELEBREZZE, JR., P.J., and
SEAN C. GALLAGHER, J., CONCUR