State v. Barzacchini ( 2014 )

[Cite as State v. Barzacchini, 2014-Ohio-3467.]
COURT OF APPEALS
STARK COUNTY, OHIO
FIFTH APPELLATE DISTRICT
JUDGES:
STATE OF OHIO : Hon. W. Scott Gwin, P.J.
: Hon. Patricia A. Delaney, J.
Plaintiff-Appellee : Hon. Craig R. Baldwin, J.
:
-vs- :
: Case No. 2014CA0009
MATTHEW JAMES BARZACCHINI :
:
Defendant-Appellant : OPINION
CHARACTER OF PROCEEDING: Criminal appeal from the Canton Muncipal
Court, Case No. 2013TRC07283
JUDGMENT: Reversed and Remanded
DATE OF JUDGMENT ENTRY: August 11, 2014
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
JOSEPH MARTUCCIO SAMUEL FERRUCCIO, JR.
Canton City Law Director JEFF SERRA
TYRONE D. HAURITZ 301 Cleveland Avenue N.W.
Canton City Prosecutor Canton, OH 44702
KATIE ERCHICK
Assistant City Prosecutor
218 Cleveland Ave. S.W.
Canton, OH 44701-4218
[Cite as State v. Barzacchini, 2014-Ohio-3467.]
Gwin, P.J.
{¶1} Appellant, Matthew J. Barzacchini [“Barzacchini”] appeals the December
20, 2013 judgment of the Canton Municipal Court, Stark County, Ohio overruling his
motion to suppress.
Facts and Procedural History
{¶2} On November 2, 2013, Barzacchini was driving southbound on Cleveland
Avenue in Uniontown, Stark County, Ohio. Officer Joshua Pirogowicz of the Uniontown
Police Department was in uniform in a marked police car. His car was stationary facing
westbound next to Cleveland Avenue, near Pontius Street.
{¶3} As Officer Pirogowicz sat stationary, Barzacchini’s vehicle drove past him.
Barzacchini’s vehicle had the driver's side window rolled down. Officer Pirogowicz
testified,
The driver turned and there was exaggerated arm movements that
came from the vehicle as well as loud audio- audible noise, screaming,
yelling, etcetera.
(T. at 6). Officer Pirogowicz was concerned that an assault may have been occurring in
the vehicle. Officer Pirogowicz testified that he could not see the back compartment of
the car. He therefore decided “to initiate a traffic stop based solely on the exigent,
possible exigent, circumstances that were presented in front of me by the defendant.”
Id.
{¶4} Officer Pirogowicz pulled onto Cleveland Avenue and followed the vehicle.
Officer Pirogowicz testified he did not witness any indicia of impaired driving or
speeding and that Barzacchini did not commit any traffic violations prior to Officer
Stark County, Case No. 2014CA0009 3
Pirogowicz activating his emergency lights to initiate a traffic stop of the Barzacchini's
vehicle. The vehicle made a right turn onto Broad Vista. Officer Pirogowicz testified that
the vehicle committed a marked lanes violation. Officer Pirogowicz activated his
overhead lights to initiate a traffic stop at approximately 12:12 a.m. in the 3600 block of
Broad Vista. The vehicle did not stop, so Officer Pirogowicz activated his siren. The
vehicle continued to travel for approximately three blocks before pulling into a private
driveway.
{¶5} Barzacchini immediately opened his car door. Officer Pirogowicz ordered
him to stay in the car because he could not see inside of the vehicle and did not know if
there were other people in the vehicle and whether an assault had occurred.
{¶6} Officer Pirogowicz approached the vehicle to investigate the situation.
During this investigation, Barzacchini remained inside of his vehicle. Officer Pirogowicz
testified that as he is speaking with Barzacchini, he smelled a strong odor of an
alcoholic beverage coming from Barzacchini’s breath. Officer Pirogowicz also observed
blood shot eyes, slurred speech, and very slow and delayed movements. Barzacchini
explained that everything was fine, no assault had occurred and that he was having a
verbal argument with his wife over the phone. Barzacchini admitted to Officer
Pirogowicz that he had consumed a couple of beers at his friend's house.
{¶7} At this time, Barzacchini’s wife arrived home and verified that the couple
had been in an argument and that the screaming and arm movements Officer
Pirogowicz had observed were most likely because of the argument. Officer Pirogowicz
testified that at this point, he knew no assault had occurred, However, based on his
observations during his investigation, Officer Pirogowicz asked Barzacchini to step out
Stark County, Case No. 2014CA0009 4
of his vehicle to perform standardized field sobriety tests, after which Barzacchini is
arrested and charged with OVI.
{¶8} Barzacchini filed a Motion to Suppress arguing there was no reasonable,
articulable suspicion of criminal activity and/or any lawful cause to stop the his vehicle.
By Judgment Entry filed December 20, 2013, the trial court overruled Barzacchini’s
motion to suppress. In response to Barzacchini’s motion, the trial court filed Findings of
Fact and Conclusions of Law on January 9, 2014.
{¶9} Barzacchini pled no contest to charges of operating a motor vehicle under
the influence of alcohol and the marked lanes violation. The Trial Court found him guilty
of both charges.
{¶10} The Trial Court sentenced Barzacchini to pay a fine of $800.00 plus court
costs on both counts, complete 60 hours of community service, serve ten (10) days at
the Stark County Jail, and suspended the remaining 170 jail days. Additionally, the Trial
Court suspended Barzacchini’s driver's license for a period of one year beginning
November 2, 2013 and assessed six points against the Barzacchini’s driver's license.
Assignments of Error
{¶11} Barzacchini raises three assignments of error,
{¶12} “I. THE TRIAL COURT'S FINDINGS OF FACT ARE AGAINST THE
MANIFEST WEIGHT OF THE EVIDENCE AND THE TRIAL COURT ERRED IN
DENYING THE APPELLANT'S MOTION TO SUPPRESS EVIDENCE BY FAILING TO
APPLY THE APPROPRIATE TEST AND/OR CORRECT LAW TO ITS FINDINGS OF
FACT.
Stark County, Case No. 2014CA0009 5
{¶13} “II. THE TRIAL COURT ERRED IN HOLDING THAT THE STOP OF THE
APPELLANT'S VEHICLE DID NOT VIOLATE THE APPELLANT'S RIGHTS UNDER
THE FOURTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES
CONSTITUTION BECAUSE NO REASONABLE AND ARTICULABLE SUSPICION OF
CRIMINAL ACTIVITY EXISTED TO JUSTIFY THE STOP OF THE APPELLANT'S
VEHICLE.
{¶14} “III. THE TRIAL COURT ERRED IN FINDING THAT EXIGENT
CIRCUMSTANCES EXISTED WHICH ALLOWED OFFICER PIROGOWICZ TO STOP
THE APPELLANT'S VEHICLE WITHOUT A REASONABLE AND ARTICULABLE
SUSPICION OF CRIMINAL ACTIVITY.”
I, II & III.
{¶15} Because we find the issues raised in Barzacchini’s first, second and third
assignments of error are closely related, for ease of discussion, we shall address the
assignments of error together.
{¶16} Appellate review of a motion to suppress presents a mixed question of law
and fact. State v. Burnside, 100 Ohio St. 3d 152, 154-155, 2003-Ohio-5372, 797 N.E.2d
71, ¶ 8. When ruling on a motion to suppress, the 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. See State v. Dunlap, 73 Ohio St.3d 308,314, 1995-Ohio-243, 652 N.E.2d
988; State v. Fanning, 1 Ohio St. 3d 19, 20, 437 N.E.2d 583 (1982). Accordingly, a
reviewing court must defer to the trial court's factual findings if competent, credible
evidence exists to support those findings. See Burnside, supra; Dunlap, supra; State v.
Long, 127 Ohio App. 3d 328, 332, 713 N.E.2d 1(4th Dist.1998); State v. Medcalf, 111
Stark County, Case No. 2014CA0009 6
Ohio App. 3d 142, 675 N.E.2d 1268 (4th Dist.1996). However, once this Court has
accepted those facts as true, it must independently determine as a matter of law
whether the trial court met the applicable legal standard. See Burnside, supra, citing
State v. McNamara, 124 Ohio App. 3d 706, 707 N.E.2d 539(4th Dist 1997); See,
generally, United States v. Arvizu, 534 U.S. 266, 122 S. Ct. 744, 151 L.Ed.2d 740(2002);
Ornelas v. United States, 517 U.S. 690, 116 S. Ct. 1657, 134 L.Ed.2d 911(1996). That
is, the application of the law to the trial court's findings of fact is subject to a de novo
standard of review Ornelas, supra. Moreover, due weight should be given “to inferences
drawn from those facts by resident judges and local law enforcement officers.” Ornelas,
supra at 698, 116 S. Ct. at 1663.
{¶17} The Ohio Supreme Court has emphasized that probable cause is not
required to make a traffic stop; rather the standard is reasonable and articulable
suspicion. State v. Mays, 119 Ohio St. 3d 406, 2008-Ohio-4358, 894 N.E.2d 1204, ¶ 23.
Further, neither the United States Supreme Court nor the Ohio Supreme Court
considered the severity of the offense as a factor in determining whether the law
enforcement official had a reasonable, articulable suspicion to stop a motorist. Whren v.
United States, 517 U.S. 806, 116 S. Ct. 1769, 135 L.Ed.2d 89(1996); City of Dayton v.
Erickson, 76 Ohio St. 3d 3, 665 N.E.2d 1091(1996).
COMMUNITY CARETAKING EXCEPTION TO FOURTH AMENDMENT
{¶18} The community caretaking exception to the Fourth Amendment is rooted
in Cady v. Dombrowski, where the U.S. Supreme Court noted that,
[b]ecause of the extensive regulation of motor vehicles and traffic,
and also because of the frequency with which a vehicle can become
Stark County, Case No. 2014CA0009 7
disabled or involved in an accident on public highways, the extent of
police-citizen contact involving automobiles will be substantially greater
than police-citizen contact in a home or office. Some such contacts will
occur because the officer may believe the operator has violated a criminal
statute, but many more will not be of that nature. Local police officers,
unlike federal officers, frequently investigate vehicle accidents in which
there is no claim of criminal liability and engage in what, for want of a
better term, may be described as community caretaking functions, totally
divorced from the detection, investigation, or acquisition of evidence
relating to the violation of a criminal statute.
413 U.S. 433, 93 S. Ct. 2523, 37 L. Ed. 2d 706 (1973).
{¶19} One of the first cases to enunciate a standard for police stops to assist
motorists, unrelated to penal or regulatory purposes, was United States v. Dunbar, 470
F. Supp. 704 (D.Conn 1979.), aff’d, 610 F.2d 807 (2nd Cir.1979). In this case, an officer
stopped a motorist after observing that the license plate was from a neighboring state
and deducing from the manner in which the driver was proceeding that he was lost. In
Dunbar, the public interest in making the stop versus the individual’s interest in privacy
was the subject of discussion by the court,
It would be too extravagant to contend that a benign purpose of
rendering assistance could never justify the stop of a motorist. The most
rigorous view of the Fourth Amendment would not bar police officers from
stopping a motorist to inform him that a bridge beyond a bend in the road
had just been washed away. Some might contend that, as soon as time
Stark County, Case No. 2014CA0009 8
permitted, even this situation could be handled less intrusively by placing
barricades to close the road, but a stopping of cars to warn and suggest
alternate routes scarcely seems unreasonable. Other situations can be
imagined where a road remains passable, yet police officers legitimately
promote safety by stopping motorists to inform them about road hazards.
Aiding a motorist believed to be lost advances no substantial safety
interest. It is arguable that the lost motorist, if not assisted, might interfere
with the peacefulness of a neighborhood at 1:00 a.m. by seeking
directions from a householder, but that concern is tenuous. Moreover, the
interest in aiding the motorist, for his own benefit or that of the local
residents, can in most situations be as well served by having the police
officer make his presence known and leaving to the motorist the decision
as to whether to stop and seek directions. Thus, while the interest of
government in aiding a lost motorist may be considered “legitimate” within
the meaning of [Delaware v.] Prouse [U.S., 440 U.S. 648, 99 S. Ct. 1391,
59 L. Ed. 2d 660 (1979)], it is an interest entitled to extremely slight weight
in the balance mandated by [United States v.]Brignoni-Ponce, [42 U.S.
873, 95 S. Ct. 2574, 45 L. Ed. 2d 607 (1975)].
On the individual’s side of the balance, the interest is also not
especially weighty. The privacy intrusion is brief and normally uneventful.
However, it does entail the risk of creating “substantial anxiety,” Delaware
v. Prouse, supra, U.S. at, 99 S. Ct. at 1391, and is a selective stopping that
is viewed by the Supreme Court as more intrusive than a stopping of all
Stark County, Case No. 2014CA0009 9
motorists at a given point. See United States v. Martinez-Fuerte, 428 U.S.
543, 558, 96 S. Ct. 3074, 49 L. Ed. 2d 1116 (1976); United States v. Ortiz,
422 U.S. 891, 894-895, 95 S. Ct. 2585, 45 L. Ed. 2d 623 (1975).
Judicial scales are not well calibrated to compare the slight
governmental and privacy interests on either side of the balance in this
case. Two considerations persuade me that the balance ought to be
struck on the side of privacy. The policy of the Fourth Amendment is to
minimize governmental confrontations with the individual. That policy is
not furthered by permitting police officers to stop citizens not even
remotely suspected of any conduct in violation of criminal or regulatory
standards, simply for the well-intentioned purpose of providing directions.
Moreover, however well-intentioned the stopping may have been in this
case, the risk of abuse is real. The “plain view” principle has spawned
numerous cases where the police officer says, “I saw him drop the
package.” See Comment, “Police Perjury in Narcotics ‘Dropsy’ Cases: A
New Credibility Gap,” 60 Geo. L.J. 507 (1971). The investigative stop
authority announced in Terry v. Ohio, [supra], has led to cases where the
officer says, “He looked suspicious.” [Citations omitted.] The Fourth
Amendment stands against initiating a new line of cases in which the
officer says, “I thought he was lost.”
Dunbar, 470 F.Supp at 707-708. In Ohio, the Supreme Court has held,
The community-caretaking/emergency-aid exception to the Fourth
Amendment warrant requirement allows a law-enforcement officer with
Stark County, Case No. 2014CA0009 10
objectively reasonable grounds to believe that there is an immediate need
for his or her assistance to protect life or prevent serious injury to effect a
community-caretaking/emergency-aid stop.
State v. Dunn, 131 Ohio St. 3d 2012-Ohio-1008, 964 N.E.2d 1037, syllabus.
Test as Applied to this Case
{¶20} In the case at bar, Officer Pirogowicz was not acting within his duties of
detection, investigation, or acquisition of evidence relating to the commission of crimes.
Therefore, we must determine if the officer was acting within a bona fide community
caretaker function.
{¶21} In the case at bar, Officer Pirogowicz’s concern was aroused as a car
drove past him in the opposite direction on a dark and rainy night. Officer Pirogowicz’s
only indicia were some exaggerated arm movements and some loud audible sounds.
Officer Pirogowicz could not hear what was being said, if anything. Officer Pirogowicz
could not see anyone inside the car other than the driver.
{¶22} Under these circumstances, Officer Pirogowicz’s generalized concern for
safety could certainly have justified him in approaching the car and making contact with
their occupants in a nonintrusive manner. However, absent more specific signs that the
occupant of the car needed assistance, Officer Pirogowicz was not justified in taking
actions that amounted to a fourth amendment seizure. This is particularly true in the
present case, because, according to Officer Pirogowicz, he witnessed no further signs
of distress coming from the car as he followed it on Cleveland Avenue. Officer
Pirogowicz testified he did not witness any indicia of impaired driving or speeding and
Stark County, Case No. 2014CA0009 11
that Barzacchini did not commit any traffic violations prior to Officer Pirogowicz
activating his emergency lights to initiate a traffic stop of Barzacchini's vehicle.
{¶23} Officer Pirogowicz testified that he observed the vehicle commit a marked
lanes violation. R.C. 4511.33, provides, in part,
(A) Whenever any roadway has been divided into two or more
clearly marked lanes for traffic, or wherever within municipal corporations
traffic is lawfully moving in two or more substantially continuous lines in
the same direction, the following rules apply:
(1) A vehicle or trackless trolley shall be driven, as nearly as is
practicable, entirely within a single lane or line of traffic and shall not be
moved from such lane or line until the driver has first ascertained that such
movement can be made with safety.
***
{¶24} From our own review of the video taken from Officer Pirogowicz’s cruiser
camera, we observe that Barzacchini’s vehicle did not travel in one lane and then
change to another lane when the roadway made a soft left turn. Barzacchini was the
only vehicle on this portion of the street when he made the turn and he never actually
went left of center
{¶25} Accordingly, since Barzacchini did not violate R.C. 4511.33, this could not
provide Officer Pirogowicz with an articulable and reasonable suspicion that Barzacchini
was operating his motor vehicle in violation of the law.
{¶26} Under the circumstances presented in this case, police would be justified
in stopping a motor vehicle leaving a sporting event, a concert, a rally or any other
Stark County, Case No. 2014CA0009 12
activity upon nothing more than one or more occupant’s ruckus behavior. We do not
believe this to have been intended. The actions that Officer Pirogowicz had witnessed
did not provide a basis to reasonably believe that there was an immediate need for his
assistance to protect life or prevent serious injury. We conclude that the stop of
Barzacchini’s vehicle was not permissible under the community caretaker test as
defined in State v. Dunn, 131 Ohio St. 3d 2012-Ohio-1008, 964 N.E.2d 1037.
{¶27} Barzacchini’s three assignments of error are sustained.
{¶28} The judgment of the Canton Municipal Court overruling Barzacchini’s
motion to suppress is vacated. This cause is remanded to that court for further
proceedings according to law.
By Gwin, P.J.,
Delaney, J., and
Baldwin, J., concur