State v. Dukes , 2013 Ohio 1691 ( 2013 )

[Cite as State v. Dukes, 2013-Ohio-1691.]
IN THE COURT OF APPEALS FOR MONTGOMERY COUNTY, OHIO
STATE OF OHIO :
Plaintiff-Appellee : C.A. CASE NO. 25488
v. : T.C. NO. 12CR1071
EDWARD L. DUKES : (Criminal appeal from
Common Pleas Court)
Defendant-Appellant :
:
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OPINION
Rendered on the 26th day of April , 2013.
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R. LYNN NOTHSTINE, Atty. Reg. No. 0061560, Assistant Prosecuting Attorney, 301 W.
Third Street, 5th Floor, Dayton, Ohio 45422
Attorney for Plaintiff-Appellee
ANTONY A. ABBOUD, Atty. Reg. No. 0078151, 130 W. Second Street, Suite 1818,
Dayton, Ohio 45402
Attorney for Defendant-Appellant
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DONOVAN, J.
{¶ 1} This matter is before the Court on the Notice of Appeal of Edward
Dukes,
filed November 20, 2012. Dukes appeals from his conviction and sentence, following a
plea of no contest, to one count of possession of cocaine (less than five grams), in violation
of R.C. 2925.11(A), a felony of the fifth degree. Dukes was sentenced to community
control sanctions for a period not to exceed five years.
{¶ 2} Dukes was indicted on June 5, 2012, and on June 19, 2012, he pled not
guilty. On July 5, 2012, Dukes filed a motion to suppress, which the trial court overruled
after a hearing. At the hearing, Officer Jeff Hiber testified that on April 6, 2012, between
9:00 and 10:00 p.m., while on routine patrol, he initiated a traffic stop on a vehicle he
observed leaving Gina’s Liquor Store on Salem Avenue and heading northbound. Hiber
testified, “I stopped the vehicle because upon running the license plate of the vehicle it came
back as being on the City’s tow list.” Hiber stated that the vehicle was on the tow-in-list as
the result of three unpaid parking citations.
{¶ 3} Hiber stated that the City of Dayton is owed in excess of $750,000.00 in
unpaid parking citations, and that there was “a change or a revision of the original tow
policy, stating that if you * * * encountered a vehicle that had two or more parking citations
and the vehicle was either parked or moving on a city street that you could stop and tow that
vehicle.” Hiber identified, as Exhibit 1, the “Dayton Police Department General Order
3.02-6 Towing Motor Vehicles,” which provides in part, “I. WHEN TO TOW A VEHICLE
(FOR TOWS INVOLVING PARKING VIOLATIONS REFER TO PARKING
ENFORCEMENT POLICY, 3_02-3.” Hiber also identified, as Exhibit 3, the “Dayton
Police Department General Order Parking Enforcement 3.02-3," referred to in Exhibit 1,
which provides in part:
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I. TYPES OF ENFORCEMENT ACTION
***
B. Parking Citation - Enforcement action used when vehicle is
illegally parked but not in a tow zone or on the Tow-in-List. * * *
C. Towing - Used when an unlawfully parked vehicle presents a
hazardous condition, is on the Tow-in-List, or is in a Tow Away Zone.
II. PARKED MOTOR VEHICLES MAY BE TOWED UNDER
THE FOLLOWING CIRCUMSTANCES:
***
g. Unlawfully parked motor vehicles on the Tow-in-List on public
property.
{¶ 4} Hiber also identified, as Exhibit 2, “Executive Order No. 7-2012,” dated
April 4, 2012, from Richard S. Biehl, Director and Chief of Police, and directed to “All
Personnel,” which provides as follows:
Previous Executive Order 9-2011 allowed officers to tow vehicles
with two (2) or more unpaid parking citations from the public right of way.
Effective April 4, 2012 officers may now tow vehicles with two (2) or more
automated traffic control photographic system (ATCPS) - (red light/speed)
citations.
Vehicles with two (2) or more unpaid parking and/or ATCPS citations
will appear on the tow-in list. Vehicles that are on the tow-in list for these
violations may be towed when the officer comes into contact with the vehicle
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operating or parked on a public street. Officers may provide the owner with
the opportunity to have someone pay the unpaid citations at the Clerk of
Court Office and return to the scene in a reasonable amount of time prior to
towing the vehicle.
{¶ 5} Hiber testified that when he approached the vehicle at issue, he observed
that it had two occupants, and that Dukes was in the front passenger seat. Hiber stated, “I
made contact with the driver of the vehicle and explained to him the reason why I had
stopped him and asked to see his license and proof of insurance and advised him that I had
found that his vehicle was on the tow list because of the three unpaid parking citations.”
Hiber stated that he “noticed that there was an open container of alcohol in the console in his
vehicle. And in addition there was a cup of alcohol next to the can of what appeared to be
beer in the console.” Hiber stated that the cup contained vodka. Hiber asked the driver to
hand him the open containers, and that the driver complied. Hiber stated that he then
removed the driver from the vehicle, patted him down and placed him in his cruiser for
officer safety.
{¶ 6} Hiber testified that he then returned to the vehicle and removed Dukes,
patted him down, and placed him in his cruiser for officer safety as well. Hiber stated that
he returned to the car and observed “bottles of alcohol that were on the floorboard, on the
right side, passenger side, where the passenger had been seated.” In the course of removing
those bottles, Hiber stated that he “discovered a small cellophane baggy with a hard rock - -
rocky substance that - - which is consistent with crack cocaine.” Specifically, Hiber stated
that the substance was located “right where the feet would be if you were sitting on the right
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front passenger seat, closest right next to the door.” Hiber stated that he tested the
substance with cobalt reagent and confirmed that it was crack cocaine. Hiber stated that he
returned to his cruiser, informed Dukes that he was under arrest, and read him his rights
from a card provided by the prosecutor’s office. Hiber stated that Dukes indicated his
understanding of each of his rights, and that he “admitted that the crack cocaine was his.”
{¶ 7} On cross-examination, Hiber stated that the Executive Order originated from
the police department and not the City of Dayton. Hiber stated that he initiated the stop by
activating his overhead lights, and he stated that the driver and Dukes were not free to leave
in the course of the stop but were “detained.” Hiber stated that the vehicle was towed from
the scene.
{¶ 8} On redirect examination, Hiber stated that the crack cocaine was not found
in the course of an inventory search but that he “saw the drugs immediately.” Hiber stated
that the Executive Order was issued to “all working police department personnel.” Hiber
stated that he did not observe a traffic violation prior to stopping the vehicle, and that he
stopped the vehicle because it was on the tow-in list.
{¶ 9} In response to questions from the court, Hiber stated that the Executive
Order was “read out loud in roll call by our sergeant - - supervisor, advising to all the patrol
officers of the revision, about the new tow - - towing vehicle policy.” He stated that State’s
Exhibit 3 was revised in December of 2008, and in force and effect at the time he stopped
the vehicle at issue.
{¶ 10} In its decision overruling Dukes’ motion to suppress, the court determined
in part as follows:
[Cite as State v. Dukes, 2013-Ohio-1691.]
Officers may stop and detain a motorist when observing any traffic
offense or violation of the law and no independent “reasonable articulable
suspicion” of other criminal activity is required under Terry. Observations
of things in plain sight, made from a place where a police officer has a right
to be, do not amount to a search in the constitutional sense.
The Second District, following the Supreme Court, permits officers to
order occupants out of a vehicle during a lawful traffic stop, given the
concern for officer safety and the minimal intrusion to the occupants.
The U.S. Supreme Court and the Ohio Supreme Court hold that the
prosecution may not use any statements, whether exculpatory or inculpatory,
stemming from a custodial interrogation of a defendant, unless it
demonstrates the use of procedural safeguards to secure a defendant’s
privilege against self-incrimination. The burden is upon the prosecution to
prove that a knowing, intelligent and voluntary waiver of a defendant’s
Miranda rights was obtained or occurred.
Here, Officer [Hiber] had authority to stop the car (and tow) pursuant
to Dayton Police Department General Orders 3.02-6 Towing Motor Vehicles,
3.02-03 Parking Enforcement, and Executive Order 7-2012. Ordering the
occupants out of the car was permitted, and certainly Officer [Hiber], upon
observing open alcohol containers and the baggie of crack cocaine in plain
view, in no way violated Defendant’s constitutional protections. Further,
before questioning Defendant, Officer [Hiber] secured Defendant’s knowing,
intelligent and voluntary waiver of his Miranda rights.
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{¶ 11} Dukes asserts one assigned error as follows:
“THE TRIAL COURT ERRED BY OVERRULING THE MOTION TO
SUPPRESS.”
{¶ 12} As this Court has previously noted:
With respect to a motion to suppress, “the trial court assumes the role
of trier of facts and is in the best position to resolve questions of fact and
evaluate the credibility of witnesses.” State v. Hopfer (1996), 112 Ohio
App.3d 521, 548, 679 N.E.2d 321, quoting State v. Venham (1994), 96 Ohio
App.3d 649, 653, 645 N.E.2d 831. The court of appeals must accept the trial
court's findings of fact if they are supported by competent, credible evidence
in the record. State v. Isaac (July 15, 2005), Montgomery App. No. 20662,
2005-Ohio-3733, citing State v. Retherford (1994), 93 Ohio App.3d 586, 639
N.E.2d 498. Accepting those facts as true, the appellate court must then
determine, as a matter of law and without deference to the trial court's legal
conclusion, whether the applicable legal standard is satisfied. Id. State v.
Cooper, 2d Dist. Montgomery No. 23719, 2010-Ohio-1120, ¶ 10.
{¶ 13} As this Court has indicated:
The Fourth Amendment to the United Stated Constitution guarantees
the right of people to be free from unreasonable searches and seizures. The
purpose of the Fourth Amendment is “to prevent arbitrary and oppressive
interference by enforcement officials with the privacy and personal security
of individuals.” United States v. Mendenhall (1980), 446 U.S. 544, 553-54,
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quoting United States v. Martinez-Fuerte (1976), 428 U.S. 543, 554. It is
important to note that only unreasonable searches and seizures are
unconstitutional.
It is undisputed that the warrantless stop of an automobile is a
“seizure” within the meaning of the Fourth Amendment. See Delaware v.
Prouse (1979), 440 U.S. 648. In the context of a routine traffic stop, the
officer must have a reasonable, articulable suspicion of criminal activity to
perform the stop. See Terry v. Ohio (1968), 392 U.S. 1. It has generally been
held that the observation of a traffic offense provides a sufficient basis for
such a stop. See, e.g., State v. Richardson (1994), 94 Ohio App.3d 501.
State v. Prendergast, 2d Dist. Montgomery No. 14746-7, 1995 WL 461346(Aug. 2, 1995).
{¶ 14} As this Court has previously noted:
The plain view exception authorizes the seizure, without a search
warrant, of an illegal object or contraband that is immediately recognizable as
such when it is in plain view of a law enforcement official. Coolidge v. New
Hampshire (1971), 403 U.S. 443, 465-466, 91 S.Ct. 2022, 29 L.Ed.2d 564;
State v. Davie (1993), 86 Ohio App.3d 460, 464, 621 N.E.2d 548. “Under
[the plain view] doctrine, an officer may seize an item without a warrant if
the initial intrusion leading to the item's discovery was lawful and it was
‘immediately apparent’ that the item was incriminating.” State v. Waddy
(1992), 63 Ohio St.3d 424, 442, 588 N.E.2d 819. State v. Gist, 2d Dist.
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Montgomery No. 22823, 2009-Ohio-4791, ¶ 34.
{¶ 15} As noted by this Court, in the case of an unlawful traffic stop, evidence
and statements obtained as a result must be suppressed. Cooper, at ¶ 22, citing Wong Sun v.
United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963).
{¶ 16} Title 45 of the Ohio Revised Code sets forth traffic laws governing the
operation of motor vehicles, including motor vehicle crimes. Title VII of the Code of
Ordinances, City of Dayton, Ohio, sets forth the municipal traffic code for the City of
Dayton. We note that fines imposed for parking violations are civil in nature, and it is not a
crime pursuant to Title 45 of the Revised Code or Title VII of the City of Dayton’s Code of
Ordinances to drive a vehicle while owing money on parking citations. Hiber’s testimony is
clear that he initiated the traffic stop herein because the vehicle was on the police
department’s “tow-in-list.” He did not observe a traffic violation or testify that he
possessed a reasonable articulable suspicion of criminal activity when he stopped the car.
{¶ 17} We further note that the State’s reliance upon City of Xenia v. McDaniel, 2d
Dist. Greene No. 2000-CA-7, 2000 WL 873212 (June 30, 2000), is misplaced. Therein,
McDaniel was convicted of driving under the influence of alcohol following a traffic stop,
and this Court upheld the stop, which was initiated not for the purpose of investigation but
for the purpose of advising McDaniel that he was no longer welcome at the home of a
woman with whom he had had a relationship. This Court noted, while “cases involving
traffic stops overwhelmingly involve stops made for the purpose of investigating possible
criminal activity, that is not the only proper purpose for which a stop may be made.” Id., *
3. This Court noted that when a stop is initiated for other than an investigatory purpose, the
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public interest in making the stop must be weighed against the individual’s interest in
privacy. Id.
{¶ 18} This Court then determined as follows:
In the case before us, the purpose in making the stop was more
directly intended to benefit a third person - - the unnamed woman with whom
McDaniel had a relationship - rather than to benefit McDaniel himself.
However, in view of the past history of a strained relationship, a police
officer’s having undertaken to be the bearer of a message of personal
rejection likely to arouse anger on McDaniel’s part may well have served to
benefit both parties to the relationship, by diminishing the likelihood of an
angry, and potentially violent, confrontation between the two. Id., *4.
This Court concluded that “it was reasonable for [the officer] to inflict upon McDaniel the
minor, but not negligible, inconvenience of a traffic stop, for the purpose of relaying the
message that he was no longer welcome at the residence of the woman with whom he had a
relationship.” Id.
{¶ 19} We disagree with the State’s assertion that the “public’s interest in
obtaining the hundreds of thousands of dollars owed to the City for unpaid parking citations
outweighed Dukes’ privacy interest as a passenger in a vehicle on the Tow List.” Hiber was
not exercising a care-taking function as exhibited in McDaniel and, as noted above, Hiber
did not observe a traffic violation, he lacked a reasonable articulable suspicion of any
criminal activity to justify the stop, and driving a motor vehicle while owing civil parking
fines is not a crime. (We note, contrary to the trial court’s assertion, that Exhibit 3 only
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allows for the towing of unlawfully parked vehicles on the tow-in-list). In other words, the
protections guaranteed by the Fourth Amendment cannot be altered by means of an
Executive Order issued to police department personnel. Since Dukes’ Fourth Amendment
rights were violated by Hiber’s unlawful stop, the plain view doctrine does not apply to the
crack cocaine which, along with Dukes’ admission that the crack cocaine was his, were
subject to suppression. Accordingly, the trial court erred in overruling Dukes’ motion to
suppress, his assignment of error is sustained, and the judgment of the trial court is reversed
and remanded for proceedings consistent with this opinion.
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FROELICH, J. and WELBAUM, J., concur.
Copies mailed to:
R. Lynn Nothstine
Antony A. Abboud
Hon. Steven K. Dankof