State v. Caplinger ( 2018 )

[Cite as State v. Caplinger, 2018-Ohio-3230.]
COURT OF APPEALS
MUSKINGUM COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO : JUDGES:
: Hon. John W. Wise, P.J.
Plaintiff-Appellee : Hon. Patricia A. Delaney, J.
: Hon. Earle E. Wise, Jr., J.
-vs- :
:
JACOB A. CAPLINGER : Case Nos. CT2017-0087
: CT2017-0088
Defendant-Appellant :
: OPINION
CHARACTER OF PROCEEDING: Appeal from the Muskingum County
Court, Case Nos. TRC1702238 and
TRC1704238
JUDGMENT: Reversed
DATE OF JUDGMENT: August 10, 2018
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
GERALD V. ANDERSON II R. SCOTT PATTERSON
27 North Fifth Street 2609 Bell Street
P.O. Box 189 Zanesville, OH 43701
Zanesville, OH 43702-0189
Muskingum County, Case Nos. CT2017-0087 & CT2017-0088 2
Wise, Earle, J.
{¶ 1} Defendant-Appellant, Jacob A. Caplinger, appeals the October 2, 2017
nunc pro tunc entries of the Muskingum County Court of Muskingum County, Ohio,
denying his motions to suppress. Plaintiff-Appellee is the state of Ohio.
FACTS AND PROCEDURAL HISTORY
{¶ 2} On April 30, 2017, the Muskingum County Sheriff's Office received a
citizen's report of a white Chevrolet Blazer with temporary tags parked at a gas station for
thirty minutes and two individuals were rummaging through the vehicle. The Sheriff's
Office contacted the Ohio State Highway Patrol to check on the vehicle. Trooper Samuel
Hendricks was dispatched to the scene. When he arrived at the gas station, the vehicle
was gone. He observed a white Chevrolet Blazer in the drive-thru of a McDonald's next
to the gas station. He waited for the vehicle to pull out. When the vehicle did not exit the
parking lot, Trooper Hendricks drove into the parking lot and observed the vehicle parked
in a space. He stopped behind the vehicle and activated his lights. He approached the
vehicle and observed the driver, appellant herein, and his passenger, eating ice cream.
Upon speaking with appellant, Trooper Hendricks decided to conduct field sobriety tests
on appellant. As a result of the testing, Trooper Hendricks arrested appellant for physical
control of a motor vehicle while under the influence in violation of R.C. 4511.194. The
prosecutor amended the charge to operating a motor vehicle while under the influence in
violation of R.C. 4511.19 (Case No. TRC1702238). Based upon the results of his urine
test, appellant was charged with three additional charges under R.C. 4511.19 for
operating a motor vehicle under the influence of marijuana metabolites, cocaine, and
cocaine metabolites (Case No. TRC1704238).
Muskingum County, Case Nos. CT2017-0087 & CT2017-0088 3
{¶ 3} On June 15, and August 16, 2017, appellant filed a motion to suppress in
each case, respectively, claiming a warrantless seizure. A hearing was held on
September 11, 2017. By nunc pro tunc entries filed October 2, 2017, the trial court denied
the motions, finding Trooper Hendricks had probable cause to stop the vehicle and
conduct a consensual encounter or an investigatory stop.
{¶ 4} On October 18, 2017, appellant pled no contest to the charges. By
sentencing entries filed October 18, 2017, the trial court sentenced appellant to thirty days
in jail.
{¶ 5} Appellant filed an appeal in each case and this matter is now before this
court for consideration. The assignment of error is identical in each case:
I
{¶ 6} "THE TRIAL COURT VIOLATED APPELLANT'S CONSTITUTIONAL
FOURTH AMENDMENT RIGHTS BY OVERRULING APPELLANT'S MOTION TO
SUPPRESS EVIDENCE OBTAINED DURING AN INVESTIGATORY STOP OF
APPELLANT WHERE THE STATE FAILED TO PRESENT SPECIFIC ARTICULABLE
FACTS TO SUPPORT A REASONABLE SUSPICION OF CRIMINAL ACTIVITY."
I
{¶ 7} In his sole assignment of error, appellant claims the trial court erred in
denying his motions to suppress. We agree.
{¶ 8} As recently stated by the Supreme Court of Ohio in State v. Leak, 145 Ohio
St.3d 165, 2016-Ohio-154, 47 N.E.3d 821, ¶ 12:
Muskingum County, Case Nos. CT2017-0087 & CT2017-0088 4
"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, "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." Id.,
citing State v. Mills, 62 Ohio St. 3d 357, 366, 582 N.E.2d 972 (1992). On
appeal, we "must accept the trial court's findings of fact if they are supported
by competent, credible evidence." Id., citing State v. Fanning, 1 Ohio St. 3d
19, 20, 437 N.E.2d 583 (1982). Accepting those facts as true, we must then
"independently determine as a matter of law, without deference to the
conclusion of the trial court, whether the facts satisfy the applicable legal
standard." Id.
{¶ 9} As the United States Supreme Court held in Ornelas v. U.S., 517 U.S. 690,
116 S. Ct. 1657, 1663, 134 L. Ed. 2d 94 (1996), "…as a general matter determinations of
reasonable suspicion and probable cause should be reviewed de novo on appeal."
{¶ 10} In keeping with the rights guaranteed under the Fourth Amendment to the
United States Constitution, the United States Supreme Court has identified three different
types of police-citizen encounters, consensual, investigatory, and arrest. State v. Taylor,
106 Ohio App. 3d 741, 748-749, 667 N.E.2d 60 (2d Dist.1995), citing Florida v. Royer, 460
U.S. 491, 103 S. Ct. 1319, 75 L. Ed. 2d 229 (1982). We are not concerned with reviewing
an arrest encounter for this case.
Muskingum County, Case Nos. CT2017-0087 & CT2017-0088 5
{¶ 11} "Encounters are consensual where the police merely approach a person in
a public place, engage the person in conversation, request information, and the person
is free not to answer and walk away." Taylor at 747, citing United States v. Mendenhall,
446 U.S. 544, 100 S. Ct. 1870, 64 L. Ed. 2d 497 (1980). "The Fourth Amendment
guarantees are not implicated in such an encounter unless the police officer has by either
physical force or show of authority restrained the person's liberty so that a reasonable
person would not feel free to decline the officer's requests or otherwise terminate the
encounter." Id. at 747-748.
{¶ 12} An investigatory stop is also known as a "Terry stop." In Terry v. Ohio, 392
U.S. 1, 22, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968), the United States Supreme Court
determined that "a police officer may in appropriate circumstances and in an appropriate
manner approach a person for purposes of investigating possible criminal behavior even
though there is no probable cause to make an arrest." However, for the propriety of a
brief investigatory stop pursuant to Terry, the police officer involved "must be able to point
to specific and articulable facts which, taken together with rational inferences from those
facts, reasonably warrant that intrusion." Id. at 21. Such an investigatory stop "must be
viewed in the light of the totality of the surrounding circumstances" presented to the police
officer. State v. Freeman, 64 Ohio St. 2d 291, 414 N.E.2d 1044 (1980), paragraph one of
the syllabus.
{¶ 13} A suppression hearing was held on September 11, 2017. At the start of the
hearing, defense counsel indicated appellant was contesting "the reasonable articulable
suspicion to execute the stop." T. at 6. The state argued first, the stop was consensual
Muskingum County, Case Nos. CT2017-0087 & CT2017-0088 6
and second, Trooper Hendricks had "reasonable suspicion based upon the caller's
information" to the police. Id.
{¶ 14} Trooper Hendricks was the sole witness for the state. He testified he
received a dispatch of a "suspicious vehicle, a white Chevy Blazer with Ohio temporary
tag." T. at 8. He explained what made it suspicious was that the "caller said they'd been
on the lot for approximately 30 minutes and was - - there was a male and female in the
vehicle rummaging through the vehicle." Id. The caller gave his/her name and phone
number. Id. Trooper Hendricks did not receive any reports that any persons appeared
intoxicated or under the influence. T. at 9.
{¶ 15} Trooper Hendricks arrived at the gas station and did not see the vehicle.
He observed a white Chevy Blazer in the drive-thru window at the McDonald's which was
next to the gas station. Id. He could not see if the vehicle had temporary tags. Id.
Because the vehicle did not pull out of the parking lot, Trooper Hendricks pulled into the
McDonald's parking lot. T. at 10. He observed the vehicle parked crookedly in a parking
spot. Id. The vehicle had temporary tags. Id. Trooper Hendricks parked his cruiser
"probably a car length" behind the vehicle, and activated his overhead lights "so they
knew it was a police officer walking up" so he could conduct a "consensual encounter."
T. at 11. Trooper Hendricks believed appellant could have exited the parking spot if he
would have backed up and made a turn. Id.
{¶ 16} Trooper Hendricks made contact with the driver, appellant herein. Trooper
Hendricks asked appellant for his driver's license and noted the following (T. at 12):
Muskingum County, Case Nos. CT2017-0087 & CT2017-0088 7
[Appellant had] real slow, sluggish, lethargic reactions. Had droopy
eyelids. Him and his - - there was a passenger, female passenger, in the
car. He starts looking for his driver's license. Doesn't produce it.
During that time, like I said, he's kind of fumbling, dropping ice cream
on himself, just, like I said, basically like a drunken behavior but I didn't smell
the odor of an alcoholic beverage.
{¶ 17} Trooper Hendricks asked appellant to step out of the vehicle. T. at 14.
Appellant was able to exit vehicle, but his movements were "really slow and sluggish."
Id. Trooper Hendricks did not smell the odor of an alcoholic beverage or anything else,
but nevertheless conducted field sobriety tests. T. at 12, 14. The questioning stopped at
this point because it was beyond the scope of the motion as appellant was contesting the
stop. T. at 15.
{¶ 18} On cross-examination, Trooper Hendricks testified he was not informed of
the caller's identity until after he had made the stop. T. at 17-18. After reviewing the
video of the stop, Trooper Hendricks admitted he parked his cruiser closer to the vehicle
than a car length, probably about five feet. T. at 23; Defendant's Exhibit 1. There was a
parking block in front of the vehicle. T. at 24. Although appellant was parked crookedly
in the parking spot, he was within the lines. Id. Trooper Hendricks admitted he did not
receive any information from dispatch pertaining to appellant possibly being intoxicated
or under the influence. T. at 24-25. On redirect, Trooper Hendricks opined appellant
could have backed up and turned to drive away, admitting "[i]t would be tight, but, yes, he
Muskingum County, Case Nos. CT2017-0087 & CT2017-0088 8
would have been" able to drive away. T. at 26. However, Trooper Hendricks did not
know how close appellant's vehicle was to the parking block. T. at 27.
{¶ 19} Defense counsel argued Trooper Hendricks's testimony established "there
was not reasonable articulable suspicion of any criminal activity prior to this stop. The
trooper did block the defendant's vehicle from exiting and he made a show of authority by
activating his overhead lights." T. at 25. Defense counsel argued the stop was not a
consensual encounter. T. at 28. The prosecutor argued the stop was in fact a consensual
encounter. T. at 29. The prosecutor argued the following (T. at 29-30):
There is no stop because the vehicle was already stopped, and it's
not a situation where an officer is pulling someone over on the side of the
road. This is a situation where a person is parked in a McDonald's parking
lot which is a quasi public-type area. The officer left room enough when he
parked for the person to drive off if he wanted to. He did not approach with
his weapons drawn. None of that was present here. The encounter was
very brief until the officer had observations to form additional reasonable
suspicion to continue the encounter and turn it into a stop at that time if
necessary.
{¶ 20} In its October 2, 2017 nunc pro tunc entries denying the motions to
suppress, the trial court determined the state did show probable cause for Trooper
Hendricks "to encounter the defendant after a citizens call advised that a White Chevy
Blazer with temporary tags was parked on the lot for approximately half an hour and a
Muskingum County, Case Nos. CT2017-0087 & CT2017-0088 9
male and female was observed rummaging through the vehicle." The trial court noted
the vehicle was not stopped, but already parked in a parking space and Trooper
Hendricks testified appellant had room to leave. The trial court concluded the "evidence
shows that the Officer clearly had probable cause to initiate the encounter with defendant
whether it was a stop to investigate or a "consensual encounter." In support of its
decision, the trial court cited the case of State v. Sabo, 6th Dist. Lucas No. L-08-1452,
2009-Ohio-6979.
{¶ 21} In a subsequent case to Sabo, State v. Whitacker, 6th Dist. Wood No. WD-
13-061, 2014-Ohio-2220, ¶ 20, the Sixth District summarized the Sabo case as follows:
This court has examined when an informant's telephone call was
sufficient to establish a reasonable basis to believe that an individual was
driving under the influence of alcohol. State v. Sabo, 6th Dist. Lucas No. L-
08-1452, 2009-Ohio-6979. In Sabo, a citizen informant contacted police
with a description of the defendant from observing him in a gas station
convenience store. Id. at ¶ 2. The informant also relayed the location,
model, make, color and license plate number of his vehicle. Id. Most
importantly, the informant gave his name and contact information and
visually observed appellant going into a nearby restaurant and kept him in
sight until police arrived. Id. Meanwhile, a second identified citizen
informant telephoned after observing appellant at the drive-thru window of
the restaurant. Id. at ¶ 3. Affirming the court's denial of appellant's motion
to suppress we noted that, based upon the totality of the circumstances
Muskingum County, Case Nos. CT2017-0087 & CT2017-0088 10
which included "identified citizen informants" combined with their
observations of appellant staggering, slurring his speech with "weird eyes"
and the information regarding his vehicle and location, the officer had
reasonable suspicion to effectuate the warrantless stop. Id. at ¶ 21.
{¶ 22} The Whitacker court distinguished Sabo. In Whitacker, an anonymous
caller informed police of intoxicated females in a red vehicle containing children parked
behind a bar. When the responding officer pulled into the parking lot, the red vehicle was
moving. The driver stopped upon seeing the police cruiser. Two other cruisers were with
the responding cruiser. None had activated their overhead lights. The responding officer
parked parallel to the defendant's vehicle and spoke with the defendant. He detected an
odor of alcohol and she admitted to drinking. The trial court denied the defendant's motion
to dismiss, finding the stop was a consensual encounter. In reversing the trial court's
decision, the Whitacker court found the stop to be investigatory, not consensual, noting
the following at ¶ 17:
Whether an encounter is an investigatory stop or consensual
encounter turns on whether a reasonable, innocent person would feel free
to leave or end the encounter with police. State v. Wallace, 145 Ohio
App.3d 116, 122, 761 N.E.2d 1143 (6th Dist.2001), citing Florida v. Bostick,
501 U.S. 429, 439, 111 S. Ct. 2382, 115 L. Ed. 2d 389 (1991). Various
circumstances have led courts to conclude that an encounter may change
from consensual to a prohibited seizure under the Fourth Amendment.
Muskingum County, Case Nos. CT2017-0087 & CT2017-0088 11
Such circumstances include the activation of the police cruiser's overhead
lights, a known signal for the motorist to stop, State v. Lynch, 196 Ohio
App.3d 420, 2011-Ohio-5502, 963 N.E.2d 890 (8th Dist.), where the police
vehicle has physically prevented the individual from leaving, State v.
Maitland, 9th Dist. Summit No. 25823, 2011-Ohio-6244, citing Wallace,
supra, at 122-123, or the presence of multiple police officers, the displaying
of a weapon or the use of threatening language. United States v.
Mendenhall, 446 U.S. 544, 554, 100 S. Ct. 1870, 64 L. Ed. 2d 497 (1980).
{¶ 23} The Whitacker court concluded the following at ¶ 18-19:
Upon review, we find that the encounter was an investigatory stop
rather than a consensual encounter. Our conclusion does not turn on
whether or not the police cruiser physically blocked appellant's exit of the
parking lot. * * * We are more troubled, however, by the fact that appellant's
vehicle was moving when it was approached by multiple police cruisers.
The video depicts that appellant stopped only after the cruisers approached.
We find that a reasonable, innocent person would not feel free to leave
when her vehicle is surrounded by police. Thus, this was not a consensual
police encounter.
Accordingly, because we find that the officers' initial approach of the
moving vehicle was an investigatory stop, it required reasonable suspicion
of prohibited activity. The anonymous telephone call which prompted police
Muskingum County, Case Nos. CT2017-0087 & CT2017-0088 12
response, while specific in its description of the vehicle, passengers, and
location failed to provide a reasonable basis to suspect criminal activity.
When the stop is based solely on the information from an anonymous
informant, it is generally insufficient to form the basis of an officer's
reasonable suspicion of criminal activity. Maitland [State v., 9th Dist.
Summit No. 25823, 2011-Ohio-6244] at ¶ 9, citing State v. Jordan, 104 Ohio
St.3d 21, 2004-Ohio-6085, 817 N .E.2d 864, ¶ 36. In addition, because the
specificity of the information, such as location and make/model of the
vehicle, does not provide evidence of knowledge of the concealed criminal
activity, its reliability is limited to aiding officers in locating the vehicle. Id.
at ¶ 10, citing Florida v. J.L., 529 U.S. 266, 272, 120 S. Ct. 1375, 146 L. Ed. 2d
254 (2000).
{¶ 24} In distinguishing the Sabo case which involved identified citizen informants
and specific information of criminal activity, the Whitacker court at ¶ 21 found "the
information given by the anonymous informant was not sufficient to establish reasonable
suspicion to stop appellant's vehicle."
{¶ 25} In the case sub judice, the caller was not anonymous, but identified. As
noted by the Supreme Court of Ohio in Maumee v. Weisner, 87 Ohio St. 3d 295, 300, 720
N.E.2d 507:
[A]n identified citizen informant may be highly reliable and, therefore,
a strong showing as to the other indicia of reliability may be unnecessary:
Muskingum County, Case Nos. CT2017-0087 & CT2017-0088 13
"[I]f an unquestionably honest citizen comes forward with a report of criminal
activity—which if fabricated would subject him to criminal liability—we have
found rigorous scrutiny of the basis of his knowledge unnecessary." Illinois
v. Gates, 462 U.S. at 233–234, 103 S.Ct. at 2329–2330, 76 L. Ed. 2d at 545.
{¶ 26} However, as noted by the Maumee court at 302, "categorization of the
informant as an identified citizen informant does not itself determine the outcome of this
case. Instead it is one element of our totality of the circumstances review of this
informant's tip, weighing in favor of the informant's reliability and veracity." The Maumee
court went on to find that the citizen informant had relayed an eyewitness account of a
crime and therefore the dispatch based on the call justified the officer's investigatory stop.
{¶ 27} The Sabo court found the citizen informants relayed facts giving rise to a
reasonable suspicion of driving while impaired warranting an investigatory stop.
{¶ 28} In the case before us, was the stop consensual or investigatory and what
did the citizen informant relay to justify the stop?
{¶ 29} When Trooper Hendricks decided to approach the vehicle, it was already
stopped, parked in a parking spot in the McDonald's parking lot. He parked his cruiser
behind the vehicle and activated his lights. There was a parking block in front of the
vehicle preventing appellant from pulling forward. We find, as the Whitacker court did,
that a reasonable, innocent person would not feel free to leave when his/her vehicle is
"blocked" in by a police cruiser with flashing lights running, a clear "show of authority."
One cannot expect a driver to start turning and maneuvering his/her vehicle out of a tight
parking situation to evade speaking with an approaching officer with flashing lights in the
Muskingum County, Case Nos. CT2017-0087 & CT2017-0088 14
background. Appellee concedes in its appellate brief at 5 that it agrees with appellant's
argument "that the trooper needed reasonable suspicion because he activated his lights."
We find the stop was not consensual, but investigatory. The question now is whether
Trooper Hendricks had specific and articulable facts, which, taken together with rational
inferences from those facts, gave rise to the probability of criminal behavior to warrant the
investigatory stop.
{¶ 30} Trooper Hendricks testified he understood a caller reported a vehicle parked
in a gas station for approximately thirty minutes with a male and a female rummaging
through the vehicle. There were no reports of breaking into the vehicle or of either person
appearing to be intoxicated or under the influence and about to operate the vehicle. The
only "suspicious crime" was "rummaging" through the vehicle, perhaps looking for loose
change to make a purchase at the McDonald's next door.
{¶ 31} When Trooper Hendricks responded to the call, he observed the vehicle at
the McDonald's drive-thru. He next observed the vehicle parked in a parking spot in the
McDonald's parking lot. He did not testify to observing any criminal activity. Given the
totality of the circumstances, we find Trooper Hendricks did not have a reasonable
suspicion to believe appellant was involved in criminal activity to warrant the investigatory
stop.
{¶ 32} Upon review, we find the trial court erred in denying appellant's motions to
suppress.
{¶ 33} The sole assignment of error in each case is granted.
Muskingum County, Case Nos. CT2017-0087 & CT2017-0088 15
{¶ 34} The judgments of the Muskingum County Court of Muskingum County, Ohio
are hereby reversed.
By Wise, Earle, J.
Wise, John, P.J. and
Delaney, J. concur.
EEW/db 718