State v. Wooster ( 2012 )

[Cite as State v. Wooster, 2012-Ohio-4439.]
IN THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
MONTGOMERY COUNTY
STATE OF OHIO :
: Appellate Case No. 24855
Plaintiff-Appellee :
: Trial Court Case No. 11-CR-509
v. :
:
CARL A. WOOSTER : (Criminal Appeal from
: (Common Pleas Court)
Defendant-Appellant :
:
...........
OPINION
Rendered on the 28th day of September, 2012.
...........
MATHIAS H. HECK, JR., by CARLEY J. INGRAM, Atty. Reg. #0020084, Montgomery
County Prosecutor’s Office, Appellate Division, Montgomery County Courts Building, Post
Office Box 972, 301 West Third Street, Dayton, Ohio 45422
Attorney for Plaintiff-Appellee
ANTONY A. ABBOUD, Atty. Reg. #0078151, Gounaris, Denslow, Abboud Co. LPA, First
National Plaza, 130 West Second Street, Suite 1818, Dayton, Ohio 45402
Attorney for Defendant-Appellant
.............
HALL, J.
{¶ 1} Carl A. Wooster appeals from his conviction and sentence on one count of
2
possessing less than one gram of crack cocaine, a fifth-degree felony.
{¶ 2} In his sole assignment of error, Wooster contends the trial court erred in
overruling a suppression motion he filed prior to entering his plea.
{¶ 3} Wooster argued in his motion that the police lacked a warrant, probable cause,
or reasonable suspicion to stop and detain him. He also alleged that his statements to the
police were made without a valid Miranda waiver and were the result of an unlawful
detention. Following a hearing, the trial court overruled the motion. Wooster entered a
no-contest plea to the drug charge. The trial court found him guilty and imposed a community
control sanction. This appeal followed.
{¶ 4} The pertinent facts are set forth in the trial court’s suppression ruling. The
only witness at the hearing was Dayton police officer David House, whose testimony the trial
court found credible. Based on House’s testimony, the trial court made the following factual
findings:
Officer David House has been a member of the City of Dayton’s Police
Department for 19 1/2 years, of which 13 were spent in the Narcotics unit. As
part of the Narcotics unit, he participated in thousands of drug investigations,
stating that he made numerous drug arrests on a daily basis. Included in those
investigations was surveillance of known or suspected drug houses. His current
assignment is as a patrol officer in the 3rd District.
Officer House was assigned the evening shift. At the 11:00 p.m. roll
call on Friday, January 28, 2011, Sgt. Pauley, House’s supervisor[,] noted that
an informant had called the drug hotline and reported there was drug activity at
3
[a] house located at 2858 Revels Avenue, in the 3rd District. The tipster gave
the following specific information: 1) The drug activity was heaviest during
two times a day—between the hours of 8:00 a.m. and 2:30 p.m. and between
9:00 p.m. and 1:00 a.m[,] 2) The daily drug traffic was most heavy around the
first of the month[,] and 3) Many of the customers were white, while the
dealers inside the house were black.
In the weeks prior to this report, Officer House and another police
person, Officer Stack, had noticed an increase in motor traffic from white
motorists in the area. A check of the license plates of the vehicles showed that
many of the individuals lived outside the area and also outside of the City of
Dayton itself. This particular area was predominantly inhabited by African
Americans and was known for drug trafficking and numerous drug arrests. As a
result of this information, Officer House was concerned.
He noted that of his drug arrests, he had made hand to hand drug buys
and he had made vehicle to vehicle buys. He also noted that he had not made
any drug buys on Revels Avenue.
Officer Stack, who was assigned to the 3rd District, told House that a
vehicle of interest was parked near the suspected drug house. The vehicle was a
blue Dodge truck that was parked west of the house. The registered owner was
Elizabeth Alexander; she is the mother of one Ramel Alexander[,] a known
drug dealer. House was familiar with Ramel Alexander as he had arrested him
on a previous occasion at a location on Germantown Street that was several
4
blocks away.
After roll call, Officer House, who was working as a one man crew,
driving a marked cruiser and wearing the uniform of the day, drove to 2858
Revels Avenue. He noticed [the] suspected blue Dodge pick-up truck parked
west of the address. House pulled up to the driveway of a vacant residence and
began to conduct surveillance.
Five to six minutes after beginning his surveillance, Officer House saw
a black Chevy S10 truck pull onto Revels Avenue from McArthur Street. The
driver was a female and the passenger was a male. The passenger, later
identified as Carl Wooster the Defendant, left the truck and went to the front
door of the residence. He was inside approximately two minutes before leaving
the house and returning to the passenger side of the truck.
House noted that the amount of time that the passenger spent in the
residence was consistent with the time needed to conduct a drug transaction.
When he worked in the Narcotics Unit and supervised informants making
controlled buys, it had taken the informants approximately two minutes to enter
the drug house and purchase the drugs.
When the passenger got back into the truck, he and the driver sat in the
truck cab with the lights out for about 30-45 seconds. House drove past the
truck going in the opposite direction, in an attempt to get its license plate. As
he drove past in his cruiser, a white female turned on the headlights and took
off quickly.
5
Officer House turned his cruiser around and attempted to catch up. He
said that it took him several blocks to reach them. As he neared the intersection
of Tubman at McArthur, he noted that the truck had its left turn signal on. At
the intersection and without notice, the truck put on its right signal and
immediately turned right.
Based upon this traffic violation, Officer House activated his overhead
lights and made a traffic stop. The driver of the vehicle was the registered
owner, Kelly DeBoard. When House asked the driver where she had been, the
Defendant answered that they had been visiting a friend, Ramel. This statement
confirmed the policeman’s suspicion that Ramel was present in the suspected
drug house.
Officer House then walked to the passenger side of the vehicle and
asked Defendant Wooster to leave. He conducted a pat-down, but found no
weapons or sharp objects. By this time, Officer Stack arrived as back-up and
she stayed with Wooster.
Officer House asked the driver if Wooster had purchased drugs.
DeBoard replied that she didn’t know. He next asked the driver if there were
any drugs inside the vehicle. DeBoard replied that she didn’t know. House then
asked her if he could search the vehicle. DeBoard replied go ahead.
The driver had a large purse that she used in an attempt to conceal what
she was doing with her right hand. DeBoard put her right hand behind the seat
and told House that she was attempting to exit the vehicle. House thought that
6
she was trying to hide a gun or other weapon.
When the driver left the vehicle House immediately looked behind the
driver’s seat and found a green plastic pill bottle partially hidden. It had no
label on it. Inside the bottle were three small oval Xanax pills. There was also a
small chunk of suspected crack cocaine; a field test of the suspected crack
consumed the entire amount.
An additional search of the truck revealed a piece of a plastic baggie
located at the left edge of the passenger seat. Inside this piece of plastic were
several crumbs of crack. At that time, both occupants of the truck were secured.
House advised the Defendant of his rights orally from memory. He
asked Wooster to give him a verbal response of yes if he understood the rights
as given to him. House demonstrated the process he used to give the Defendant
his rights. Wooster indicated that he understood each right and gave a verbal
yes in response. * * *
(Doc. #17 at 2-5).
{¶ 5} After making the foregoing factual findings, the trial court held that House
lawfully had stopped DeBoard’s tuck based on both a traffic violation and a reasonable,
articulable suspicion of drug-related criminal activity. The trial court further held that
DeBoard validly had consented to a search of the stopped truck. Finally, the trial court found
no Miranda violation and concluded that Wooster had knowingly, intelligently, and
voluntarily made statements to police. (Id. at 5-9).
{¶ 6} On appeal, Wooster challenges only the trial court’s finding that House had a
7
lawful basis for stopping the truck in which he was a passenger. Wooster argues that no traffic
violation occurred and that no reasonable, articulable suspicion of drug-related criminal
activity existed.
{¶ 7} During the suppression hearing, House testified that he observed a violation of
R.C. 4511.39, which provides:
(A) No person shall turn a vehicle or trackless trolley or move right or
left upon a highway unless and until such person has exercised due care to
ascertain that the movement can be made with reasonable safety nor without
giving an appropriate signal in the manner hereinafter provided.
When required, a signal of intention to turn or move right or left shall
be given continuously during not less than the last one hundred feet traveled by
the vehicle or trackless trolley before turning * * *.
***
Any stop or turn signal required by this section shall be given either by
means of the hand and arm, or by signal lights that clearly indicate to both
approaching and following traffic intention to turn or move right or left.
{¶ 8} House testified that DeBoard approached an intersection with her left turn
signal activated. “[A]t the last second,” she turned off the left signal, tuned on the right turn
signal, and made a right-hand turn. (Suppression Tr. at 14). Wooster argues that this conduct
did not violate R.C. 4511.39. He asserts that the statute does not require the same directional
signal to be used during the entire one-hundred feet preceding a turn. By signaling a left-hand
turn and then immediately signaling a right-hand tun, Wooster claims DeBoard satisfied the
8
statute. In making this argument, Wooster notes that criminal statutes should be strictly
construed against the State.
{¶ 9} Upon review, we find that officer House observed a violation of R.C.
4511.39(A) and, therefore, had a lawful basis for making a traffic stop. The statute obligates a
driver to give “an appropriate signal.” It further requires a driver to “signal [an] intention to
turn or move right or left” and to use “signal lights that clearly indicate * * * intention to turn
or move right or left.” In our view, a driver does not satisfy these requirements by signaling an
intention to turn left for nearly all of the required one-hundred-foot distance before then
making a right-hand turn. A left-hand signal is not “an appropriate signal” for a right-hand
turn. “The canon in favor of strict construction of criminal statutes is not an obstinate rule
which overrides common sense * * *.” State v. Sway, 15 Ohio St.3d 112, 115, 472 N.E.2d
1065 (1984).
{¶ 10} Having found that an observed traffic violation gave House a lawful basis for
stopping DeBoard’s truck, we need not decide whether a reasonable, articulable suspicion of
drug-related criminal activity also justified the stop.
{¶ 11} Wooster’s assignment of error is overruled, and the judgment of the
Montgomery County Common Pleas Court is affirmed.
.............
GRADY, P.J., and FROELICH, J., concur.
Copies mailed to:
Mathias H. Heck
Carley J. Ingram
9
Antony Abboud
Hon. Frances E. McGee