State v. Steinbrunner , 2012 Ohio 2358 ( 2012 )

[Cite as State v. Steinbrunner, 2012-Ohio-2358.]
IN THE COURT OF APPEALS OF OHIO
THIRD APPELLATE DISTRICT
AUGLAIZE COUNTY
STATE OF OHIO,
PLAINTIFF-APPELLEE, CASE NO. 2-11-27
v.
BLAKE STEINBRUNNER, OPINION
DEFENDANT-APPELLANT.
Appeal from Auglaize County Municipal Court
Trial Court No. 2010 TRC 07016
Judgment Affirmed
Date of Decision: May 29, 2012
APPEARANCES:
Andrew R. Bucher for Appellant
R. Andrew Augsburger for Appellee
Case No. 2-11-27
SHAW, P.J.
{¶1} Defendant-appellant Blake Steinbrunner (“Steinbrunner”) appeals the
October 24, 2011 judgment of the Auglaize County Municipal Court sentencing
him upon his conviction of operating a vehicle while under the influence of drugs
and/or alcohol (also known as an “OVI”), in violation of R.C. 4511.19(A)(1)(d), a
misdemeanor of the first degree.
{¶2} The facts relevant to this appeal are as follows. On December 4,
2010, shortly before 4 a.m., Mark Johns (“Johns”) was in line at a McDonald’s
drive-thru in Wapakoneta behind a blue Hyundai later identified to be driven by
Steinbrunner. While in line, Johns observed that the person in the vehicle in front
of him was yelling and giving the employees at McDonald’s a “hard time.”
Thinking that this person sounded drunk, and feeling sorry for the McDonald’s
workers, Johns decided to call the police.
{¶3} When Johns called the police, he identified himself giving his name
and contact information. Johns further provided a description of the vehicle in
front of him, which included the license plate number. Johns then told the
dispatcher that he had observed the person in front of him in the McDonald’s
drive-thru for approximately fifteen minutes, that he “sound[ed] drunk as hell” and
that he was “cussing” and “yelling.”
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{¶4} Officer Justin Marks (“Officer Marks”) received a call from the
dispatcher at roughly 3:52 a.m. alerting him to a possible impaired driver at
McDonald’s who was “yelling.” When Officer Marks arrived at the McDonald’s
he pulled up past Johns while Johns was still on the phone with the dispatcher and
identified the Steinbrunner vehicle. Shortly thereafter Steinbrunner pulled out of
the McDonald’s in the blue Hyundai. When Steinbrunner pulled out, Officer
Marks quickly got the attention of the drive-thru attendant and asked the attendant
whether the person in the car who had just pulled out was drunk or had been
drinking. The drive-thru attendant responded, “oh yea.”
{¶5} Officer Marks pulled out of the McDonalds and almost immediately
turned on his lights and initiated an investigatory stop of Steinbrunner.
Steinbrunner’s blood alcohol concentration (“BAC”) registered at .152, in excess
of the legal limit. Steinbrunner was subsequently cited with operating a vehicle
while under the influence of alcohol and/or drugs, in violation of R.C.
4511.19(A)(1)(a), and operating a vehicle with a concentration of eight-
hundredths of one gram or more but less than seventeen hundredths of one gram
by weight of alcohol per two hundred ten liters of breath (hereinafter “operating a
vehicle with a prohibited BAC”), in violation of R.C. 4511.19(A)(1)(d), both
misdemeanors of the first degree.
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{¶6} On December 8, 2010, Steinbrunner entered pleas of not guilty to both
charges. On April 14, 2011 Steinbrunner filed a motion to suppress alleging
several reasons that evidence should be suppressed. A hearing was set on the
motion for July 1, 2011. Prior to the hearing on the motion to suppress, the State
and Steinbrunner agreed that there would only be one issue at the hearing, namely,
whether there was a reasonable articulable suspicion to stop Steinbrunner based
upon the citizen-informant call.
{¶7} On July 1, 2011 the hearing on the motion to suppress was held. At
the hearing the State called Johns and Officer Marks. The State also entered into
evidence the audio recording of Johns’ call to the police and the recording of the
traffic stop of Steinbrunner. Steinbrunner cross-examined both of the State’s
witnesses but did not put forth any evidence.
{¶8} On July 18, 2011 the trial court entered its judgment overruling
Steinbrunner’s motion to suppress.
{¶9} On October 24, 2011, Steinbrunner changed his plea to no contest to
the charge of operating a vehicle with a prohibited BAC, in violation of
4511.19(A)(1)(d), and the State dismissed the remaining charge without prejudice.
On that same date, Steinbrunner was found guilty of Operating a Vehicle with a
prohibited BAC. Steinbrunner was subsequently sentenced to 20 days in jail,
ordered to pay a fine of $875 and court costs, and his license was suspended for
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three months.1 The sentence was stayed pending appeal. It is from this judgment
that Steinbrunner appeals asserting the following assignment of error for our
review.
ASSIGNMENT OF ERROR
THE TRIAL [COURT] ERRED IN WHEN (sic) IT FOUND
THE SEIZURE OF MR. STEINBRUNNER DID NOT
VIOLATE THE FOURTH AMENDMENT, [OF THE] UNITED
STATES CONSTITUTION OR ARTICLE I, § 14 OF THE
OHIO CONSTITUTION[.]
{¶10} In his sole assignment of error, Steinbrunner contends that Officer
Marks lacked reasonable suspicion to perform an investigatory stop and that
therefore the trial court erred in overruling his motion to suppress. Specifically
Steinbrunner claims Johns referred to a non-specific ‘he’ in his call to the police,
that Johns’ statement that the person in front of him in the drive-thru “sounds
drunk as hell” was insufficient to justify an investigatory stop and that Officer
Marks did not personally observe any traffic violation before stopping
Steinbrunner.
{¶11} Appellate review of a decision on a motion to suppress evidence
presents mixed questions of law and fact. United States v. Martinez, 949 F.2d
1117, 1119 (11th Cir.1992). At a suppression hearing, the trial court assumes the
1
The court ordered all of the jail time and $500 of the fine suspended on the conditions that Steinbrunner
complete a 72 hour driver intervention program, comply with any and all recommendations of the program,
submit to alcohol testing whenever requested in conjunction with the operation of a vehicle, and that he not
commit any criminal or jailable traffic offenses.
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role of trier of fact, and is, therefore, in the best position to resolve questions of
fact and evaluate witness credibility. State v. Carter, 72 Ohio St.3d 545, 552
(1995). As such, a reviewing court must accept a trial court’s factual findings if
they are supported by competent, credible evidence. State v. Guysinger, 86 Ohio
App.3d 592, 594 (4th Dist. 1993). The reviewing court then applies the factual
findings to the law regarding suppression of evidence. State v. Devanna, 3d Dist.
No 2-04-12, 2004-Ohio-5096, ¶ 9. An appellate court reviews the trial court’s
application of the law de novo. State v. Anderson, 100 Ohio App.3d 688, 691 (4th
Dist. 1995).
{¶12} The Fourth and Fourteenth Amendments to the United States
Constitution generally prohibit warrantless searches and seizures, and any
evidence that is obtained during an unlawful search or seizure will be excluded
from being used against the defendant. Mapp v. Ohio, 367 U.S. 643, 649, 81 S.Ct.
1684 (1961). At a suppression hearing, the State bears the burden of establishing
that a warrantless search and seizure falls within one of the exceptions to the
warrant requirement, and that it meets Fourth Amendment standards of
reasonableness. City of Xenia v. Wallace, 37 Ohio St.3d 216 (1988), at paragraph
two of the syllabus; State v. Kessler, 53 Ohio St.2d 204, 207 (1978); City of
Maumee v. Weisner, 87 Ohio St.3d 295, 297 (1999) (Citation omitted).
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{¶13} One exception to the warrant requirement is that a police officer may
conduct an investigative stop if there is a reasonable articulable suspicion of
criminal activity. State v. Keck, 3d. Dist. No. 5-03-27, 2004-Ohio-1396, ¶ 11;
State v. Bobo, 37 Ohio St.3d 177, 179 (1988); Berkemer v. McCarty, 468 U.S.
420, 439-440, 104 S.Ct. 3138 (1984). Notably the threshold is lower to justify an
investigatory stop than it is for probable cause to arrest. See State v. Devanna, 3d.
Dist. No. 2-04-12, 2004-Ohio-5096, ¶ 21. For an investigatory stop, an officer
needs only “‘specific and articulable facts which, taken together with rational
inferences from those fac[ts], reasonably warrant [the] intrusion.’” Maumee, 87
Ohio St.3d at 299, quoting Terry v. Ohio, 392 U.S. 1, 21 (1968).
{¶14} In determining whether reasonable articulable suspicion exists, a
reviewing court must look to the totality of the circumstances. State v. Andrews,
57 Ohio St.3d 86, 87-88 (1991). Under this analysis, a court should consider
“both the content of the information possessed by police and its degree of
reliability.” Maumee, 87 Ohio St.3d at 299, quoting Alabama v. White, 496 U.S.
325, 330, 110 S.Ct. 2412 (1990).
{¶15} An officer does not have to have personally observed a traffic
violation or criminal activity to justify detaining someone; rather, an officer can
rely on information transmitted to him through a dispatch or a flyer. Maumee at
297, quoting United States v. Hensley, 469 U.S. 221, 231, 105 S.Ct. 675, 681
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(1985); State v. Bailey, 3d. Dist. No. 8-07-02, 2008-Ohio-2254, ¶ 17; Devanna,
supra, at ¶ 13. Moreover, “[a] telephone tip can, by itself, create reasonable
suspicion justifying an investigatory stop where the tip has sufficient indicia of
reliability.” Maumee, supra, at paragraph two of the syllabus. In expanding upon
this issue, the Ohio Supreme Court held in City of Maumee v. Weisner that
the admissibility of the evidence uncovered during * * * a stop
does not rest upon whether the officers relying upon a dispatch or
a flyer “were themselves aware of the specific facts which led
their colleagues to seek assistance.” It turns instead upon
“whether the officers who issued the flyer” or dispatch possessed
reasonable suspicion to make the stop.
Id. at 297, quoting Hensley, supra at 231. (Emphasis sic.)
{¶16} In this case, on December 4, 2010 shortly before 4 a.m. Mark Johns
was in line at a McDonald’s drive-thru in Wapakoneta behind a vehicle later
identified to be driven by Steinbrunner. (Tr. at 11). While in line Johns observed
the person in front of him giving the McDonald’s employees a “hard time.” (Id.)
Johns said that the person was “out of control” and sounded drunk so Johns called
the police. (State’s Ex. A).
{¶17} When Johns called the police, he spoke with a dispatcher and gave
the dispatcher his name and contact information. (State’s Ex. A). Johns identified
the vehicle that was still in front of him in the McDonald’s drive-thru as a blue
Hyundai and provided the license plate number. (Id.) Johns told the dispatcher
that the person in front of him was “cussing and yelling up a storm” and that the
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person “sounds drunk as hell.” (Id.) Johns said that he had been observing the
person in front of him for approximately fifteen minutes and further described the
person in front of him as “out of control.” (Id.) Johns never specifically said “the
driver” of the blue Hyundai on the call to the police; however, Johns did testify at
the suppression hearing that he was aware another person was in the Hyundai
when he made the call. (Tr. at 11).
{¶18} While Johns was still speaking with the dispatcher, the dispatcher
notified Officer Marks, who was in the area, of a possible “.19,” meaning a
possible impaired driver, and that the person was “yelling.” (Tr. at 15-16) In
addition, the dispatcher relayed the vehicle’s description and its license plate
number to Officer Marks. (Id.) Less than two minutes later, while Johns was still
on the phone with the dispatcher, Officer Marks arrived at the McDonald’s.
(State’s Ex. A). When Johns saw the officer arrive he got off the phone. (Id.)
{¶19} Officer Marks waited while Steinbrunner’s car exited the drive-thru.
(Tr. at 16). Officer Marks then pulled up to the drive-thru window and got the
attention of the drive-thru attendant and asked if the driver of the blue Hyundai
was drunk or if he had been drinking. (Id.) The drive-thru attendant responded,
“oh yea.” (Tr. at 17). At that point, Officer Marks left the McDonald’s and
pursued Steinbrunner. (Tr. at 18). Almost immediately Officer Marks turned on
his overhead lights and initiated an investigatory stop. (Id.) Officer marks
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testified that he stopped Steinbrunner’s vehicle within 100 yards of the
McDonald’s. (Tr. at 30).
{¶20} On appeal, Steinbrunner specifically challenges the validity of the
investigatory stop, not his subsequent arrest. Steinbrunner claims Johns referred
to a non-specific ‘he’ in his call to the police, that Johns’ statement that the person
in front of him in the drive-thru “sounds drunk as hell” was insufficient to justify a
stop and that Officer Marks did not personally observe any traffic violation before
stopping Steinbrunner.
{¶21} Despite Steinbrunner’s claims to the contrary, there is more evidence
than Johns’ statement that the person in front of him in the drive through “sounds
drunk as hell” to create a reasonable articulable suspicion of criminal activity. On
Johns’ call to the dispatcher, which was entered into evidence at the suppression
hearing, Johns specifically identified himself and the car in front of him.2 (State’s
Ex. A). In addition, Johns said the person in front of him was “out of control,”
“cussing” and “yelling” for approximately fifteen minutes prior to Johns making
the call. (State’s Ex. A). Moreover, Officer Marks came to the McDonald’s
drive-thru while Johns was still speaking with the dispatcher and was able to
observe where Steinbrunner’s vehicle was in line. (Tr. at 16). Then, when
Steinbrunner exited the McDonald’s, Officer Marks quickly got the attention of
2
It was conceded by Steinbrunner in his brief that Johns was an identified citizen informant.
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the drive-thru attendant and asked if the driver was drunk or had been drinking.
(Tr. at 17). The attendant responded “oh yea.” (Id.) Later, Officer Marks
returned to the McDonalds and identified the McDonalds employee. (Id.)
{¶22} The record makes clear that the tip itself contains more information
than Steinbrunner argues; however, the record also makes clear that Officer Marks
was not relying solely on the tip. Officer Marks was also able to get some
corroboration from the McDonald’s attendant that the tip was accurate. It was
only after this corroboration that Officer Marks initiated the investigatory stop.
Based on the foregoing, under the totality of the circumstances, we hold that there
was a reasonable articulable suspicion of criminal activity for Officer Marks to
conduct an investigatory stop.
{¶23} For the foregoing reasons, Steinbrunner’s assignment of error is
overruled and the judgment of the Municipal Court of Auglaize County is
affirmed.
Judgment Affirmed
PRESTON, J., concurs.
WILLAMOWSKI, J., concurs in Judgment Only.
/jlr
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