State v. Kerr , 2017 Ohio 8516 ( 2017 )

[Cite as State v. Kerr, 2017-Ohio-8516.]
IN THE COURT OF APPEALS OF OHIO
THIRD APPELLATE DISTRICT
ALLEN COUNTY
STATE OF OHIO,
CASE NO. 1-17-01
PLAINTIFF-APPELLEE,
v.
TOBY L. KERR, OPINION
DEFENDANT-APPELLANT.
Appeal from Allen County Common Pleas Court
Trial Court No. CR2016-0237
Judgment Reversed and Cause Remanded
Date of Decision: November 13, 2017
APPEARANCES:
Linda Gabriele for Appellant
Terri L. Kohlrieser for Appellee
Case No. 1-17-01
WILLAMOWSKI, J.
{¶1} Defendant-appellant Toby L. Kerr (“Kerr”) appeals the judgment of
the Allen County Court of Common Pleas for denying his motion to suppress. He
challenges this decision on two grounds: (1) he asserts that the police did not have
reasonable suspicion to conduct an investigatory stop of his vehicle; and (2) he
asserts that the police did not have probable cause to conduct a warrantless search
of his vehicle. For the reasons set forth below, the judgment of the lower court is
reversed.
Facts and Procedural History
{¶2} On October 10, 2015, Officer Zane Slusher (“Slusher”) was on patrol
near a gas station in Lima, Ohio. Doc. 56 at 6. Though he had only one year of
experience on the police force at this time, Slusher had been involved in several
criminal investigations in this area and was aware that this location was known for
having high levels of drug activity. Id. at 3, 7. At roughly 8:40 p.m., Slusher was
sitting in his cruiser when he observed a car, which was driven by Kerr, pull into
the gas station parking lot. Id. at 8. A pedestrian walked up to the vehicle,
reached into the driver’s side of the vehicle through the open window, then
quickly turned around, and walked away. Id. The entire interaction between the
pedestrian and the driver lasted only a few seconds. Id. at 10. Kerr then drove his
vehicle out of the gas station parking lot, having never exited the vehicle while he
was on the premises of the gas station. Id. at 10-11.
-2-
Case No. 1-17-01
{¶3} At the time of this interaction, Slusher was about three hundred feet
away from where this interaction occurred and was unable to determine what, if
anything, was exchanged during this interaction. Though Slusher had never
before witnessed a hand-to-hand drug transaction during his time in law
enforcement, he believed that he had witnessed one of these illegal exchanges. Id.
at 17. On the basis of his observations, Slusher radioed Officer Aaron
Montgomery (“Montgomery”) and informed him of this suspicious behavior. Id.
at 34. On the basis of this information, Montgomery pursued the car described by
Slusher, activated his lights, and conducted a stop of Kerr’s vehicle. Id. at 35. At
the suppression hearing, Montgomery testified that this was an investigatory stop
based strictly on Slusher’s observations as reported to Montgomery over the radio.
Id. at 35-36.
{¶4} Montgomery’s patrol car was equipped with a video and audio
recorder, and the recording of this stop was admitted into evidence. Ex. A. The
video shows that Montgomery pulled Kerr over at 8:41 p.m. Id. Montgomery
testified that, as he approached Kerr’s vehicle, he saw Kerr reaching around his
seat with his right arm, making furtive movements, and “digging towards the
center console.” Doc. 56 at 36. Upon seeing these movements, Montgomery
instructed Kerr to place his hands on the steering wheel and then ordered Kerr to
come out of the vehicle. Id. at 37. Montgomery, who had a police dog with him
-3-
Case No. 1-17-01
in his cruiser, warned Kerr that he would deploy the dog if Kerr was not
cooperative. Id.
{¶5} Once Kerr was outside his vehicle, Montgomery informed him that he
was being detained—not arrested—and handcuffed him. Id. Ex. A. Montgomery
testified that he smelled the odor of alcohol as Kerr exited the vehicle. Id. at 38.
The video shows that two other police officers arrived at the scene within thirty
seconds of Montgomery approaching Kerr’s vehicle. Ex. A. These two officers
helped to handcuff Kerr and then escorted Kerr to the rear of his vehicle. Id. At
this point, in the process of searching Kerr’s person, one of the officers reached his
hand into each of Kerr’s pockets without first performing a pat-down of Kerr’s
outer clothing. Id.
{¶6} At 8:42 p.m., Slusher arrived at the scene and immediately told one of
the officers supervising Kerr to put him in the back of his patrol car. Doc. 56 at
41. Ex. A. At this point, Montgomery had opened the rear, driver’s side door of
Kerr’s vehicle and was searching the backseat. Id. While one officer and Slusher
accompanied Kerr to one of the patrol cars, another officer remained with
Montgomery at Kerr’s vehicle. Id. Montgomery said to this remaining officer,
“Man, we just gotta, we just gotta find it. He, uh, he put it back here with his right
hand. Stuffed it back here in this back seat area. So we just need to find it.” Ex.
A. The remaining officer then walked from where Montgomery was standing to
the other side of the vehicle, opened the rear door on the passenger’s side of the
-4-
Case No. 1-17-01
vehicle, and began searching the back seat. Id. Montgomery can be seen in the
video pulling multiple articles of clothing out of the back seat area, shaking them
outside of the vehicle, and then dropping them in the street. Id. During this
process, Montgomery said, “I just gotta f****n’ find it.” Id.
{¶7} During the search, Montgomery and the other officer found a cup
containing a beverage in the back seat. Doc. 56 at 39-40. The other officer with
Montgomery asked, “Are you sure he wasn’t settin’ the drink in here, man?” Id.
To which Montgomery replied, “No.” Id. At this point in the recording,
Montgomery can be seen removing a cup from the vehicle and can be heard
saying, “I’m wondering if he didn’t put it in the drink.” Id. Montgomery then
examined the contents of the cup and then stated, “Well, that’s one thing he’s
freakin’ out about. He’s got alcohol in it.” Id. As Slusher approached Kerr’s
vehicle, Montgomery turned towards Slusher and said, “Well the one thing he did
for sure is he put that drink back there. But what else he put, we gotta find it.” Id.
At this point, Slusher is searching the area around the front seat on the driver’s
side of the vehicle, and another officer is still searching the back seat on the
passenger’s side of the vehicle. Id.
{¶8} Montgomery then turned again towards the vehicle and continued to
search the area in the back seat on the driver’s side of the vehicle until he found a
small, empty baggie. Doc. 56 at 40. The baggie was found underneath a shirt in
the back seat and was wet around the edges of the torn area as if this area had been
-5-
Case No. 1-17-01
bitten off. Id. The outside of the bag had a “minor amount of * * * white residue”
on it. Id. At the suppression hearing, Montgomery explained that he believed this
white residue was cocaine, though there was not enough of it to perform a test. Id.
at 40-41. Upon finding this baggie, the video shows that he remarked, “Oh, there
it is. He f*****g ate it.” Id. When the other officer asks, “What was it?” Id.
Montgomery stated that he believed it to be, “F****n’ crack. He f****n’ ate it.”
Id. See Doc. 56 at 40-41. He then said, “Well, we can arrest him for tampering.”
Ex. A. Six seconds after Montgomery communicated what he had found, Slusher,
who was searching the area around the front seat of the vehicle, can be heard on
the tape, saying, “Uh-oh.” Id. Ten seconds later, Slusher confirmed the discovery
of contraband, saying, “Yep. We got crack.” Id. The cocaine was in a cigarette
pack that had been stored in a compartment in the front door on the driver’s side of
the vehicle. Doc. 56 at 14-15. When Slusher opened the cigarette pack, he found
a brown, folded up piece of paper that had a few “off-white colored rocks inside.”
Id. at 15.
{¶9} On June 16, 2016, Kerr was indicted for possession of cocaine in
violation of R.C. 2925.11(A), 2925.11(C)(4)(a) and pled not guilty. Doc. 1. Doc.
43. Kerr filed a motion to suppress on August 18, 2016. Doc. 21. The trial court
held a suppression hearing on October 13, 2016. Doc. 56. After Slusher and
Montgomery testified, the trial judge denied Kerr’s motion to suppress, finding
that the stop and subsequent search were legal. Doc. 36. On November 1, 2016,
-6-
Case No. 1-17-01
however, Kerr changed his plea to no contest at which time the trial court found
him guilty and entered a conviction for possession of cocaine. Doc. 43. The trial
court then sentenced Kerr on December 15, 2016. Doc. 57.
{¶10} Kerr filed a notice of appeal on January 3, 2017. Doc. 48. On
appeal, Kerr raises two assignments of error.
First Assignment of Error
The trial court erred in overruling the defendant-appellant’s
motion to suppress as law enforcement lacked reasonable
suspicion to stop the defendant-appellant.
Second Assignment of Error
The trial court erred in overruling the defendant-appellant’s
motion to suppress as law enforcement lacked probable cause to
conduct a warrantless search of the defendant-appellant’s
vehicle.
In this case, the resolution of the first assignment of error makes the issues raised
in the second assignment of error moot. For this reason, we will analyze the first
assignment of error only.
First Assignment of Error
{¶11} In his first assignment of error, Kerr argues that the police did not
have a reasonable and articulable suspicion to conduct a traffic stop of his vehicle.
Kerr argues that the subsequent search of his vehicle was, therefore, illegal, and
that the fruits of this search must be suppressed. For this reason, Kerr argues that
the trial court erred by denying his motion to suppress the contraband that was
-7-
Case No. 1-17-01
discovered in his vehicle. On the basis of these arguments, he requests that this
Court reverse his conviction.
Legal Standard
{¶12} The Fourth Amendment to the United States Constitution guarantees
“[t]he right of the people to be secure in their persons, houses, papers, and effects,
against unreasonable searches and seizures * * *.” Fourth Amendment, United
States Constitution. The Ohio Constitution offers a parallel provision to the
Fourth Amendment of the Federal Constitution that has been held to afford the
same level of protection as the United States Constitution. State v. Hoffman, 141
Ohio St.3d 428, 2014-Ohio-4795, 25 N.E.3d 993, ¶ 11, citing State v. Robinette,
80 Ohio St.3d 234, 685 N.E.2d 762 (1997). “The primary purpose of the Fourth
Amendment is to impose a standard of reasonableness upon the exercise of
discretion by law enforcement officers in order to ‘safeguard the privacy and
security of individuals against arbitrary [governmental] invasions.’” State v.
Carlson, 102 Ohio App.3d 585, 592, 657 N.E.2d 591, 592 (9th Dist.1995), quoting
Delaware v. Prouse, 440 U.S. 648, 99 S.Ct. 1391, 59 L.Ed.2d 660 (1979). “The
Fourth Amendment does not proscribe all state-initiated searches and seizures; it
merely proscribes those which are unreasonable.” Florida v. Jimeno, 500 U.S.
248, 250, 111 S.Ct. 1801, 114 L.Ed.2d 297 (1991), citing Katz v. United States,
389 U.S. 347, 360, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967). Thus, “[t]he touchstone
of the Fourth Amendment is reasonableness.” Id.-8-
Case No. 1-17-01
{¶13} A reviewing court must first determine whether a search or seizure
within the meaning of the Fourth Amendment occurred. “In determining whether
a particular encounter constitutes a ‘seizure,’ and thus implicates the Fourth
Amendment, the question is whether, in view of all the circumstances surrounding
the encounter, a reasonable person would believe he or she was ‘not free to leave,’
or ‘not free to decline the officers’ requests or otherwise to terminate the
encounter.’” State v. Westover, 2014-Ohio-1959, 10 N.E.3d 211, (10th Dist.),
quoting United States v. Mendenhall, 446 U.S. 544, 554, 100 S.Ct. 1870, 64
L.Ed.2d 497 (1980) and Florida v. Bostick, 501 U.S. 429, 439, 111 S.Ct. 2382,
115 L.Ed.2d 389 (1991). Accordingly, a police stop of a motor vehicle and the
resulting detention of its occupants has been held to be a seizure under the Fourth
Amendment. Prouse at 653, citing United States v. Martinez-Fuerte, 428 U.S.
543, 556-558, 96 S.Ct. 3074, 3082–3083, 49 L.Ed.2d 1116 (1976); United States
v. Brignoni-Ponce, 422 U.S. 873, 878, 95 S.Ct. 2574, 2578, 45 L.Ed.2d 607(1975).
{¶14} The court must then determine what level of objective justification
was required for the intrusion committed through this search or seizure. Police
interactions with members of the public involve varying levels of intrusion into the
constitutionally protected zone of privacy. Westover at ¶ 14 (holding The United
States Supreme Court [has] recognize[d] three categories of police-citizen
interactions: (1) a consensual encounter, which requires no objective justification
-9-
Case No. 1-17-01
* * * (2) a brief investigatory stop or detention, which must be supported by
reasonable suspicion of criminal activity * * *; and (3) a full-scale arrest, which
must be supported by probable cause.”). Under the Fourth Amendment, the level
of intrusiveness involved in a traffic stop must be objectively justified by a
reasonable, articulable, and particularized suspicion that criminal activity is afoot.
State v. Andrews, 57 Ohio St.3d 86, 565 N.E.2d 1271 (1991).
{¶15} Next, the court must determine whether law enforcement’s actions
conformed with the requisite legal standard. “The Supreme Court of Ohio has
defined ‘reasonable articulable suspicion’ as ‘specific and articulable facts which,
taken together with rational inferences from those facts, reasonably warrant the
intrusion [upon an individual’s freedom of movement].’” State v. Shaffer, 2013-
Ohio-3581, 4 N.E.3d 400, ¶ 18 (3d Dist.), quoting State v. Bobo, 37 Ohio St.3d
177, 178, 524 N.E.2d 489 (1988), quoting Terry v. Ohio, 392 U.S. 1, 21-22, 88
S.Ct. 1868, 20 L.Ed.2d 889 (1968). “Reasonable suspicion entails some minimal
level of objective justification for making a stop—that is, something more than an
inchoate and unparticularized suspicion or ‘hunch,’ but less than the level of
suspicion required for probable cause.” State v. Ramos, 155 Ohio App.3d 396,
2003-Ohio-6535, 801 N.E.2d 523, ¶ 13, quoting State v. Jones, 70 Ohio App.3d
554, 556–557, 591 N.E.2d 810 (1990), citing Terry at 27.
{¶16} The police conduct must be examined under the totality of the
surrounding circumstances. Andrews, supra, at 88. Thus, “[t]he ‘reasonable and
-10-
Case No. 1-17-01
articulable suspicion’ analysis is based on the collection of factors, not on the
individual factors themselves.” (Emphasis sic). State v. Mays, 119 Ohio St.3d
406, 2008-Ohio-4539, 894 N.E.2d 1204, ¶ 12, quoting State v. Batchili, 113 Ohio
St.3d 403, 2007-Ohio-2204, 865 N.E.2d 1282, ¶ 11. “Furthermore, these
circumstances are to be viewed through the eyes of the reasonable and prudent
police officer on the scene who must react to events as they unfold.” Andrews,
supra, at 88-89, citing United States v. Hall, 525 F.2d 857, 859 (C.A.D.C.1976);
State v. Freeman, 64 Ohio St.2d 291, 295, 474, 414 N.E.2d 1044, 1047 (1980).
“A court reviewing the officer’s actions must give due weight to his experience
and training and view the evidence as it would be understood by those in law
enforcement.” Andrews, supra, at 89, citing U.S. v. Cortez, 449 U.S. 411, 417,
101 S.Ct. 690, 694, 66 L.Ed.2d 621 (1981).
{¶17} Finally, the court must determine whether the evidence should be
suppressed pursuant to the exclusionary rule. To deter Fourth Amendment
violations, the Supreme Court of the United States has adopted an exclusionary
rule under which “any evidence that is obtained during an unlawful search or
seizure will be excluded from being used against the defendant.” State v.
Steinbrunner, 3d Dist. Auglaize No. 2-11-27, 2012-Ohio-2358, ¶ 12, citing Mapp
v. Ohio, 367 U.S. 643, 649, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961). Thus,
suppression of illegally obtained evidence is generally the appropriate remedy for
a Fourth Amendment violation. State v. O’Neal, 3d Dist. Allen No. 1-07-33,
-11-
Case No. 1-17-01
2008-Ohio-512, ¶ 19. At a suppression hearing, the State has the burden of
establishing that a warrantless search or seizure fell into an exception to the
general rule that requires a warrant and complied with the Fourth Amendment
standard of reasonableness. State v. Morlock, 3d Dist. Allen No. 1-12-21, 2013-
Ohio-641, ¶ 12, citing City of Xenia v. Wallace, 37 Ohio St.3d 216, 524 N.E.2d
889 (1988).
{¶18} Under appellate review, motions to suppress present “mixed
questions of law and fact.” State v. Yeaples, 180 Ohio App.3d 720, 2009-Ohio-
184, 907 N.E.2d 333, ¶ 20 (3d Dist.).
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.
(Citations omitted.) State v. James, 2016-Ohio-7262, 71 N.E.3d 1257, ¶ 8 (3d
Dist.), quoting State v. Burnside, 100 Ohio St.3d 152, 2003-Ohio-5372, 797
N.E.2d 71, ¶ 8.
Legal Analysis
{¶19} In this case, the police stopped Kerr’s vehicle. This action
constituted a seizure within the meaning of the Fourth Amendment. In their
testimony, the police not did claim to have had observed illegal activity—such as a
-12-
Case No. 1-17-01
traffic violation—prior to the stop nor did the police aver to have had probable
cause that Kerr had committed or was in the process of committing a crime. Thus,
this was an investigatory traffic stop. To justify such a seizure under the Fourth
Amendment, the police needed—at a minimum—a reasonable, articulable
suspicion that criminal activity was afoot.
{¶20} In this case, a police officer witnessed a car pull into a gas station
parking lot. The officer then saw a pedestrian walk up to this car, reach into one
of the car’s open windows, turn around, and walk back towards an apartment
complex. In addition to this observation, the State points to several facts to argue
that the police did have reasonable suspicion to conduct an investigatory traffic
stop: (1) the police officer had received some training in drug enforcement; (2) the
officer was located in an area known for high levels of drug activity; and (3) this
interaction occurred in the evening.
{¶21} In turn, the Defense argues that the interaction that the police officer
witnessed was not sufficient to give rise to a reasonable, articulable suspicion.
The Defense points to several additional facts to support this contention: (1) the
officer had only one year of patrol experience at this time; (2) the police officer
could not determine whether money or contraband changed hands; (3) the officer
had never before observed a hand-to-hand drug transaction; (4) the officer did not
know the identity or history of either the pedestrian or the driver; (5) the officer
was located one hundred yards away from this interaction; and (6) no other
-13-
Case No. 1-17-01
criminal offense was observed at any point prior to the stop of Kerr’s vehicle that
could justify this seizure.
{¶22} After examining the record, we find that the facts available to the
police at the time of the traffic stop—without more—do not constitute a
reasonable, articulable suspicion that criminal activity was afoot. Under the
totality of the circumstances, the activities the police officer observed were lawful
in their appearance. He witnessed a pedestrian walk up to a car, reach inside, turn
around, and walk away. See State v. Pettegrew, 8th Dist. Cuyahoga No. 91816,
2009-Ohio-4981; State v. Scales, 8th Dist. Cuyahoga No. 87023, 2006-Ohio-3946,
¶ 14. Compare State v. Fletcher, 8th Dist. Cuyahoga No. 88038, 2007-Ohio-989,
¶ 16; State v. Reed, 2017-Ohio-2644, --- N.E.3d ---, (5th Dist.).1
{¶23} From his vantage point, the police officer could not even determine
whether an exchange had occurred between the pedestrian and Kerr. See State v.
Terrell, 8th Dist. Cuyahoga No. 80676, 2002-Ohio-4913, ¶ 26 (holding reasonable
suspicion existed where the officer saw money exchanged in a hand-to-hand
transaction in an area known for high levels of drug activity but could not see if
drugs were transferred). Thus, the police officer was not able to cite facts that
1
In Fletcher, a police officer testified that he observed what he believed to be a hand-to-hand drug
transaction in an area known for high levels of drug activity. Fletcher at ¶ 16. The Eighth District Court of
Appeals distinguished the facts in Fletcher from those in Pettegrew, saying, “The officer must be able to
testify that he saw a hand-to-hand exchange, which he believes was a drug transaction based on the area.”
Pettegrew at ¶ 20. The Court further noted that the officer in Pettegrew did not observe the defendant “and
the unidentified male secretively or furtively exchang[e] something * * *.” Id. We also note that the hand-
to-hand transaction in Fletcher was undertaken while the defendant was on a bike. Id. In Pettegrew, as in
the case presently before this Court, the defendant was sitting inside of a car, and the officer could not see
whether an actual exchange occurred. Id. at ¶ 18.
-14-
Case No. 1-17-01
articulated why his suspicions were raised by his observations. A belief that
behavior, which is lawful in its appearance and unaccompanied by some indicia of
sinister activities, was of a criminal nature is a mere hunch.
{¶24} Since the behavior of Kerr and the pedestrian was lawful in its
appearance, the State’s assertion that he had a reasonable and articulable suspicion
ultimately rests upon the location and time of this interaction. An investigative
stop is not justified simply because it occurred in an area that is known for high
levels of criminal activity. Brown v. Texas, 443 U.S. 47, 52, 99 S.Ct. 2637, 2641,
61 L.Ed.2d 357, 362–363 (1979). “To hold otherwise would result in the
wholesale loss of the personal liberty of those with the misfortune of living in high
crime areas.” State v. Carter, 69 Ohio St.3d 57, 65, 630 N.E.2d 355, 362 (1994).
{¶25} Coupled with any additional indicator of suspicious behavior, this
series of events may have given rise to the reasonable and articulable suspicion
that was necessary to conduct a lawful investigatory stop of Kerr’s vehicle. In the
absence of additional indicators, however, the officer’s belief that he had
witnessed a hand-to-hand drug transaction was a mere hunch. The fact that the
officer’s hunch proved to be correct cannot justify this illegal stop post factum.
Since the stop was not justified by reasonable and articulable suspicion, the fruits
of the search that followed the investigatory traffic stop of Kerr’s vehicle must be
suppressed. For this reason, Kerr’s first assignment of error is sustained.
-15-
Case No. 1-17-01
Second Assignment of Error
{¶26} Since the first assignment of error, which addresses the legality of
the investigatory stop of Kerr’s vehicle, has been sustained, the questions raised
under the second assignment of error, which concerns the legality of the search of
Kerr’s vehicle, are moot. For this reason, this Court declines to address these
issues pursuant to App.R. 12(A)(1)(c).
Conclusion
{¶27} Having found error prejudicial to the appellant in the particulars
assigned and argued, the judgment of the Allen County Court of Common Pleas is
reversed. This matter is remanded to the trial court for further proceedings in
accord with this opinion.
Judgment Reversed
And Cause Remanded
ZIMMERMAN and SHAW, J.J., concur.
/hls
-16-