Brunswick v. Ware , 2011 Ohio 6791 ( 2011 )

[Cite as Brunswick v. Ware, 2011-Ohio-6791.]
STATE OF OHIO ) IN THE COURT OF APPEALS
)ss: NINTH JUDICIAL DISTRICT
COUNTY OF MEDINA )
CITY OF BRUNSWICK C.A. No. 11CA0114-M
Appellant
v. APPEAL FROM JUDGMENT
ENTERED IN THE
EDWARD WARE III MEDINA MUNICIPAL COURT
COUNTY OF MEDINA, OHIO
Appellee CASE No. 10 TRC 03428
DECISION AND JOURNAL ENTRY
Dated: December 30, 2011
CARR, Judge.
{¶1} Appellant, the City of Brunswick, appeals the judgment of the Medina Municipal
Court granting the motion to suppress filed by Edward Ware III. This Court reverses.
I.
{¶2} On May 20, 2010, police initiated a stop of Ware’s truck at 1:41 a.m. in the
parking lot of Big Lots in Brunswick, Ohio. After Ware failed several field sobriety tests, he was
charged with two counts of driving while under the influence pursuant to sections
434.01(a)(1)(A) and 434.01(a)(1)(D) of the Brunswick Codified Ordinances. Ware pleaded not
guilty to the charges. On July 7, 2010, Ware filed a motion to suppress all evidence seized as a
result of the traffic stop. A hearing on the motion was held on October 6, 2010. Subsequently,
on October 19, 2010, the trial court issued a journal entry granting the motion to suppress.
{¶3} The City filed a notice of appeal on October 21, 2010. On appeal, the City raises
one assignment of error.
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II.
ASSIGNMENT OF ERROR
“THE MEDINA MUNICIPAL COURT ERRED IN GRANTING APPELLEE’S
MOTION TO SUPPRESS EVIDENCE.”
{¶4} In its sole assignment of error, the City argues that the trial court erred in granting
Ware’s motion to suppress. This Court agrees.
{¶5} The City argues on appeal that the facts available to the officer, when viewed in
their totality, gave rise to a reasonable suspicion that Ware was in the process of committing a
theft offense. Ware argues that the officer did not have a reasonable, articulable, suspicion of
criminal activity and that the decision to stop the vehicle was based solely on a hunch.
{¶6} The Supreme Court of Ohio has held:
“Appellate review of a motion to suppress presents a mixed question of law and
fact. When considering 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. Consequently, an appellate court must
accept the trial court’s findings of fact if they are supported by competent,
credible evidence. Accepting these facts as true, the appellate court must then
independently determine, without deference to the conclusion of the trial court,
whether the facts satisfy the applicable legal standard.” (Internal citations
omitted.) State v. Burnside, 100 Ohio St. 3d 152, 2003-Ohio-5372, at ¶8.
{¶7} The Fourth Amendment of the United States Constitution and Section 14, Article
I of the Ohio Constitution secure an individual’s right to be free from unreasonable searches and
seizures. A traffic stop constitutes a seizure within the meaning of the Fourth Amendment.
Whren v. United States (1996), 517 U.S. 806, 809-810. However, an investigative stop of a
motorist does not violate the Fourth Amendment if the officer has a reasonable suspicion that the
individual is engaged in criminal activity. Maumee v. Weisner (1999), 87 Ohio St. 3d 295, 299,
citing Terry v. Ohio (1968), 392 U.S. 1, 22. Before a law enforcement officer may stop a
vehicle, the officer must have a reasonable suspicion, based upon specific and articulable facts,
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that an occupant is or has been engaged in criminal activity. State v. Gedeon (1992), 81 Ohio
App.3d 617, 618. Reasonable suspicion constitutes something less than probable cause. State v.
Carlson (1995), 102 Ohio App. 3d 585, 590. The propriety of an investigative stop must be
viewed in light of the totality of the circumstances. State v. Bobo (1988), 37 Ohio St. 3d 177,
paragraph two of the syllabus.
{¶8} Officer Samuel Gagliardi of the Brunswick Police Department was the only
witness to testify at the October 6, 2010 hearing. Officer Gagliardi testified as follows. In the
early morning hours of May 20, 2010, Officer Gagliardi was driving his squad car on general
patrol duty. As he traveled southbound on Pearl Road in Brunswick, Officer Gagliardi noticed a
truck parked in the parking lot of Big Lots. Officer Gagliardi noticed that the truck, which was
dark in color, was parked in an east/west direction in the parking lot despite the fact that all the
parking spaces run north/south. The truck was parked next to pallets of mulch and soil. It was
approximately 1:41 a.m. and Big Lots was not open for business at that hour. Officer Gagliardi
testified that Big Lots generally has pallets of either mulch or soil that are stacked in the parking
lot and remain there 24 hours a day. Officer Gagliardi further testified that he is required to
patrol that parking lot as part of his duties in order to prevent possible thefts or mischievous
activity. Officer Gagliardi testified that the truck was “[p]arked in front of the store, next to the
pallets.”
{¶9} When Officer Gagliardi noticed the truck, he made a left turn onto Laurel Road
and entered the Big Lots parking lot. Officer Gagliardi testified that it was dark as he entered the
parking lot. When Officer Gagliardi drove into the parking lot in his marked cruiser, the truck
began to pull away diagonally across the parking lot without turning on its lights. The truck was
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moving away from Officer Gagliardi’s cruiser toward an exit that would have taken it onto Pearl
Road.
{¶10} Officer Gagliardi initiated a traffic stop. The vehicle came to a stop in the middle
of the parking lot. Officer Gagliardi identified Ware as the driver of the truck. Officer Gagliardi
testified that when he approached the vehicle he observed that Ware’s eyes were bloodshot, his
speech was slurred, and there was a strong odor of alcohol emanating from his person. Officer
Gagliardi testified that Ware had a wet spot around his neck that “came down to a V probably
about halfway down his chest.” Officer Gagliardi testified that there was a female in the
passenger seat of the vehicle. When Officer Gagliardi asked Ware if he had been consuming
alcohol, Ware responded that he had “three or four beers” when he and the passenger were at a
club. Officer Gagliardi then administered several field sobriety tests, namely the horizontal gaze
nystagmus test, the one-leg stand test, and the portable breath test. Based on the results of the
tests, Officer Gagliardi placed Ware under arrest.
{¶11} On cross-examination, Officer Gagliardi was asked why he stopped Ware’s
vehicle. Officer Gagliardi responded, “Mr. Ware’s vehicle was suspicious in nature due to the
fact that the business was closed, and it was my duty to investigate to make sure that there was
no possible theft offense occurring.” Officer Gagliardi testified that he did not have reason to
believe that Ware committed a traffic offense, although Ware had neglected to turn on his
headlights when he attempted to leave the parking lot despite the fact it was dark. When asked if
he had any reason to believe that Ware had committed a criminal act, however, Officer Gagliardi
responded in the affirmative. Officer Gagliardi testified that there was “reasonable enough cause
to believe that there was a -- a crime in progress or possibly to be in progress.” When asked to
elaborate on what he observed that night, Officer Gagliardi testified, “The Defendant was
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parked. You could tell that the car was occupied. I noticed he tapped the brake one time, and
making the back taillights light up, you know, adding to the fact that there was a person inside
the car; parking in the wrong direction.” Defense counsel asked a series of questions relating to
how Big Lots displayed their hours of operation. Officer Gagliardi testified that Big Lots’ hours
are posted on the front door of the store but he had never seen anyone walk up to look at the
store hours in the middle of the night. Officer Gagliardi further testified that Ware was not
parked in a direction that faced the front doors where the store hours were posted. Officer
Gagliardi indicated that he had not received a report regarding any criminal activity in that area
on that particular night. On redirect examination, Officer Gagliardi clarified that he had received
reports of thefts on prior nights.
{¶12} The trial court concluded that there was no legal basis for the initial detention of
the vehicle. The trial court noted that because Ware was not on a street or highway, he was not
required to turn on his headlights in the parking lot and, therefore, there was no evidence of a
traffic violation. The trial court further concluded that Officer Gagliardi did not have a
reasonable, articulable suspicion of any imminent criminal activity. The trial court also found
that the police officer could not have stopped the vehicle as part of a community caretaking
function because there was no evidence that Officer Gagliardi had a reasonable belief that the
driver of the vehicle needed emergency assistance.
{¶13} Based upon the evidence presented at the hearing on the motion to suppress, we
conclude that Officer Gagliardi had a reasonable suspicion, based on specific and articulable
facts, that Ware was in the process of committing a criminal act. This Court has previously held
that police officers had reasonable suspicion to justify an investigatory stop of a defendant’s
truck when the officers observed the defendant driving behind a closed business at 3:00 a.m.
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with the headlights of his truck extinguished. Cuyahoga Falls v. Pollack, 9th Dist. No. 23988,
2008-Ohio-2024. In this case, Officer Gagliardi observed Ware’s truck in the Big Lots’ parking
lot 1:41 a.m. The store was not open for business as it was the middle of the night. The truck’s
headlights were extinguished and it was not parked in a parking space. Rather, Ware had pulled
his truck up next to pallets of soil and mulch which are left outside overnight. Officer Gagliardi
testified that there had been a history of theft in that area. A truck, by its very nature, is a vehicle
designed to transport cargo. While the lights of the truck were extinguished, Officer Gagliardi
knew the truck was occupied because he observed the driver tap the brakes. When Officer
Gagliardi entered the parking lot in his cruiser, Ware immediately attempted to exit the parking
lot by driving diagonally across the lot without turning on his headlights. These circumstances,
when viewed in their totality, constituted reasonable, articulable facts upon which Officer
Gagliardi could base his decision to stop the vehicle.
{¶14} The City’s sole assignment of error is sustained.
III.
{¶15} The City’s assignment of error is sustained. The judgment of the Medina
Municipal Court is reversed and the cause remanded for further proceedings consistent with this
decision.
Judgment reversed,
and cause remanded.
There were reasonable grounds for this appeal.
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We order that a special mandate issue out of this Court, directing the Medina Municipal
Court, County of Medina, State of Ohio, to carry this judgment into execution. A certified copy
of this journal entry shall constitute the mandate, pursuant to App.R. 27.
Immediately upon the filing hereof, this document shall constitute the journal entry of
judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the
period for review shall begin to run. App.R. 22(E). The Clerk of the Court of Appeals is
instructed to mail a notice of entry of this judgment to the parties and to make a notation of the
mailing in the docket, pursuant to App.R. 30.
Costs taxed to Appellee.
DONNA J. CARR
FOR THE COURT
MOORE, J.
CONCURS
BELFANCE, P. J.
DISSENTS, SAYING:
{¶16} I respectfully dissent. The Fourth Amendment to the United States Constitution
provides:
“The right of the people to be secure in their persons, houses, papers and effects, against
unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but
upon probable cause, supported by Oath or affirmation, and particularly describing the
place to be searched, and the persons or things to be seized.”
{¶17} Thus, absent a warrant and probable cause, citizens are protected from the
unconstrained exercise of police discretion in effecting a seizure or search of their person or their
property. In Terry v. Ohio (1968), 392 U.S. 1, the United States Supreme Court created a narrow
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exception to the requirement of probable cause prior to effecting a search or seizure. In Terry, the
Court determined that a police officer may momentarily stop and frisk a person where, based on
specific facts, the officer concludes that the person has committed a crime or is about to commit
a crime and may be armed and dangerous. Id. at 30. The Court emphasized that it had created
very narrowly drawn authority to search for weapons without a warrant. Id.
{¶18} In determining whether a temporary seizure without probable cause is itself
permissible, Terry established that the officer must have reasonable articulable suspicion of
criminal activity based on “specific and articulable facts” and “rational inferences from those
facts[.]” Id. at 21. This initial inquiry must be satisfied in order to justify any detention at its
inception.
{¶19} In this case, the officer observed a vehicle in the parking lot at 1:41 a.m. The
officer did not observe any specific activity of the vehicle or its occupants. When the vehicle
began to move, the officer stopped the vehicle. The officer admitted that he stopped the vehicle
based upon a “hunch.”
{¶20} The trial court found that the officer had not observed any traffic violations and
that the officer did not have any belief that the defendant was not validly licensed or that the
vehicle was not properly registered. The court further found that there had been no reports of
criminal activity in the parking lot during the evening and morning in question. Further,
although the officer alluded to reports of criminal activity in the past, the trial court found that
“[n]o evidence was submitted as to the nature or location of businesses involved in these non-
specific reports.” The trial court thus concluded that the officer did not witness any traffic
violation and did not otherwise have a reasonable and articulable suspicion of any imminent
criminal activity.
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{¶21} At a hearing on a motion to suppress, the trial court serves as the trier of fact and
is in the best position to weigh the evidence and resolve factual questions in part through
evaluating the credibility of the witnesses. Accordingly, this Court must give deference to the
factual findings of the trial court if they are supported by competent, credible evidence. State v.
Burnside, 100 Ohio St. 3d 152, 2003-Ohio-5372 at ¶8. The trial court’s factual findings are
supported by competent credible evidence. Based upon those findings, it is apparent that the
officer did not have reasonable suspicion to conduct a seizure as there were no specific objective
facts that Mr. Ware was involved or about to be involved in criminal activity. Brown v. Texas
(1979), 443 U.S. 47, 53. See, also, Terry, 392 U.S. at 6, 23, 27-28 (concluding reasonable
suspicion existed after officer observed individuals casing a business for period of time). Here,
the officer observed a car parked in a lot and nothing more. There could have been many
reasons why a man and a woman would be parked in a parking lot. The fact that the officer
might have thought it suspicious that someone was stopped in the parking lot at 1:41 a.m.
certainly may have warranted further surveillance, however, a seizure is not constitutionally
permissible simply because circumstances appear suspicious or an officer has a hunch about the
situation. See Brown, 443 U.S. at 52-53 (concluding that a stop of a suspicious looking
individual in a bad neighborhood was not constitutionally permissible because even though the
situation looked suspicious, the officer was unable to point to any facts that appellant was
involved in criminal conduct); Delaware v. Prouse (1979), 440 U.S. 648, 661 (concluding that
random stop of a vehicle was not permissible); State v. Paschal, 169 Ohio App. 3d 200, 2006-
Ohio-5331, at ¶¶20-22 (concluding that the stop of a vehicle was impermissible where stop was
effectuated based upon the officer’s hunch).
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{¶22} The United States and Ohio Constitutions secure the right of people to freely
travel on streets and roadways at any hour of the day or night. We live in a society where many
people work nighttime hours and many stores and restaurants are open 24 hours daily. As
emphasized by the United States Supreme Court, “people are not shorn of all Fourth Amendment
protection when they step from their homes onto the public sidewalks. Nor are they shorn of
those interests when they step from the sidewalks into their automobiles.” Prouse, 440 U.S. at
663.
{¶23} The trial court’s findings of fact were supported by competent, credible evidence
and it properly applied the law to those facts. Accordingly, because the officer did not possess a
reasonable articulable suspicion of possible criminal activity based upon specific facts as
opposed to a hunch, I would affirm the decision of the trial court.
APPEARANCES:
J. MATTHEW LANIER, Attorney at Law, for Appellant.
WILLIAM LEFAIVER. Attorney at Law, for Appellee.