State v. Stout

[Cite as State v. Stout, 2021-Ohio-1125.]
IN THE COURT OF APPEALS
TWELFTH APPELLATE DISTRICT OF OHIO
BUTLER COUNTY
STATE OF OHIO, :
Appellee, : CASE NO. CA2020-08-085
: OPINION
- vs - 4/5/2021
:
JOSEPH DONALD STOUT, :
Appellant. :
CRIMINAL APPEAL FROM BUTLER COUNTY COURT OF COMMON PLEAS
Case No. CR2019-12-1951
Michael T. Gmoser, Butler County Prosecuting Attorney, Willa Concannon, Government
Services Center, 315 High Street, 11th Floor, Hamilton, Ohio 45011, for appellee
Engel & Martin, LLC, Mary K. Martin, 4660 Duke Drive, Suite 101, Mason, Ohio 45040, for
appellant
HENDRICKSON, J.
{¶ 1} Appellant, Joseph Donald Stout, appeals from a decision of the Butler County
Court of Common Pleas denying his motion to suppress. For the reasons stated below, we
affirm the decision of the trial court.
{¶ 2} At approximately 9:00 p.m. on November 30, 2019, Officer Joseph Kettman
of the Hamilton Police Department was driving westbound on Franklin Street in a marked
Butler CA2020-08-085
police cruiser when he observed appellant riding a bicycle east on the sidewalk on Franklin
Street towards McKinley Avenue in Hamilton, Butler County, Ohio. Appellant was doing
"wheelies" and did not have a mounted light on his bicycle, despite it being dark and rainy.
{¶ 3} Officer Kettman determined appellant was in violation of a city ordinance
requiring bicycles to have a mounted light when riding on the street between sunset and
sunrise. The officer decided to stop appellant for this violation. However, because the
officer was driving in the opposite direction of appellant, he had to drive ahead and turn his
vehicle around. When the officer caught up to appellant, appellant was still riding his bicycle
on the sidewalk on Franklin Street, but he was now between Millville Avenue and Edgewood
Avenue – a location that was two intersections away from where Officer Kettman first
observed appellant. The officer had not observed appellant operating his bicycle on the
street but stated that only "seconds * * * [n]ot more than a minute" passed between the
officer's first observation of appellant on the bicycle and his stop of appellant more than two
intersections away.
{¶ 4} After stopping appellant, Officer Kettman approached and advised appellant
that he was required to have a mounted light on his bicycle. The officer asked appellant if
he had anything illegal on him, to which appellant replied, "a knife." Officer Kettman
conducted a pat down and recovered the knife. The officer then obtained appellant's
identification and discovered that appellant had an active bench warrant for his arrest from
the Hamilton Municipal Court. Another officer who had arrived on scene placed appellant
under arrest. At this time, appellant volunteered that he had drugs in his pocket. The
arresting officer recovered methamphetamine from appellant's left pants pocket.
{¶ 5} Appellant was indicted on one count of aggravated possession of drugs in
violation of R.C. 2925.11(A), a felony of the third degree. Appellant pled not guilty to the
charge and filed a motion to suppress, arguing Officer Kettman lacked reasonable suspicion
-2-
Butler CA2020-08-085
to stop him for a traffic violation. Appellant contended any evidence discovered after his
unlawful seizure, such as the methamphetamine discovered in his pants pocket, had to be
suppressed as fruit of the poisonous tree. The state filed a memorandum in opposition to
appellant's motion, arguing Officer Kettman had probable cause to stop appellant as he
violated Sections 373.01 and 373.06 of the Hamilton City Code by operating his bicycle on
the city's streets at night without a mounted light. The state further argued that even if there
was not probable cause for the traffic stop, suppression was not proper pursuant to the
attenuation doctrine, as the discovery of the arrest warrant served as an intervening
circumstance between the initial stop and the discovery of the contraband.
{¶ 6} A hearing on appellant's motion to suppress was held on July 9, 2020. The
state presented testimony from Officer Kettman. At the conclusion of the hearing, the trial
court denied appellant's motion to suppress, finding that the stop was "a valid investigatory
stop." The court dismissed appellant's claim that Officer Kettman did not have a valid
reason for initiating the stop as the officer had not personally observed appellant operating
the bicycle on the street but rather only on the sidewalk. In dismissing this argument, the
court stated, in relevant part:
THE COURT: Ofc. Kettman was questioned by [the prosecutor]
as far as any other cross streets that the Defendant would have
had to go over to get where he ultimately caught up to him near
the intersection of Franklin and Millville. He identified at least
McKinley, I think Edgewood, being at least two streets that [the
defendant] had to cross over. So obviously, this is not a
continuous sidewalk that the Defendant had to be riding on.
I appreciate Ofc. Kettman's honesty that the only time he ever
observed [the defendant] he was on the sidewalk, but obviously
at some point in time, to go over those cross streets, he had to
be riding on the street at some point in time without a headlight
on the bicycle. If this had been a situation where the officer had
merely observed him riding back and forth on the sidewalk,
never losing sight of him. And only having been on the sidewalk,
it might be a different story. But obviously, I think at some point
in time to get to where he ultimately caught up to him, [the
-3-
Butler CA2020-08-085
defendant] had to ride on the street for a period of time when he
crossed over the intersection at McKinley and at Edgewood.
The court further concluded that even if there had not been a lawful traffic stop, the
attenuation doctrine applied making suppression inapplicable as "the evidence was seized
incident to a lawful arrest."
{¶ 7} Following the denial of his motion to suppress, appellant entered a no contest
plea to the charge of aggravated possession of drugs. Appellant was sentenced to a 12-
month prison term and given 115 days of jail-time credit.
{¶ 8} Appellant timely appealed from his conviction, raising the following as his sole
assignment of error:
{¶ 9} THE TRIAL COURT ERRED IN DENYING APPELLANT'S MOTION TO
SUPPRESS.
{¶ 10} Appellant contends the trial court erred in denying his motion to suppress as
the state failed to demonstrate that the traffic stop of his bicycle was a valid investigatory
stop. Specifically, he contends that while Officer Kettman "might have had a hunch that
[he] drove his bicycle across a street without the bicycle having a headlight," the officer did
not have "reasonable articulable suspicion that this was the case" as it was possible that
appellant walked the bicycle across the street. Appellant contends suppression is the
appropriate remedy for his unlawful seizure and argues that the attenuation doctrine does
not apply under the circumstances presented in this case.
{¶ 11} "Appellate review of a ruling on a motion to suppress presents a mixed
question of law and fact." State v. Turner, Slip Opinion No. 2020-Ohio-6773, ¶ 14, citing
State v. Burnside, 100 Ohio St.3d 152, 2003-Ohio-5372, ¶ 8. The trial court, as the trier of
fact, is in the best position to weigh the evidence to resolve factual questions and to evaluate
witness credibility. State v. Vaughn, 12th Dist. Fayette No. CA2014-Ohio-05-012, 2015-
-4-
Butler CA2020-08-085
Ohio-828, ¶ 8. Therefore, when reviewing a trial court's decision on a motion to suppress,
this court is bound to accept the trial court's findings of fact if they are supported by
competent, credible evidence. Turner at ¶ 14. "An appellate court, however, independently
reviews the trial court's legal conclusions based on those facts and determines, without
deference to the trial court's decision, whether as a matter of law, the facts satisfy the
appropriate legal standard." State v. Cochran, 12th Dist. Preble No. CA2006-10-023, 2007-
Ohio-3353, ¶ 12.
{¶ 12} The Fourth Amendment to the United States Constitution and Section 14,
Article I of the Ohio Constitution prohibit unreasonable searches and seizures. Bowling
Green v. Godwin, 110 Ohio St.3d 58, 2006-Ohio-3563, ¶ 11. "A traffic stop initiated by a
law enforcement officer implicates the Fourth Amendment and must comply with the Fourth
Amendment's general reasonableness requirement." State v. Willis, 12th Dist. Butler No.
CA2012-08-155, 2013-Ohio-2391, ¶ 18, citing Whren v. United States, 517 U.S. 806, 809,
116 S.Ct. 1769 (1996).
{¶ 13} "Where a law enforcement officer has probable cause or an articulable,
reasonable suspicion to stop a motorist for any criminal violation, including a minor traffic
violation, the stop is constitutionally valid." State v. Hentenaar, 12th Dist. Butler No.
CA2019-09-161, 2020-Ohio-4503, ¶ 9, citing Dayton v. Erickson, 76 Ohio St.3d 3, 11-12
(1996) and State v. Mays, 119 Ohio St.3d 406, 2008-Ohio-4539, ¶ 23. "Probable cause is
determined by examining the historical facts, i.e., the events leading up to a stop or search,
'viewed from the standpoint of an objectively reasonable police officer.'" Godwin, 2006-
Ohio-3563 at ¶ 14, quoting Ornelas v. United States, 517 U.S. 690, 696, 116 S.Ct. 1657(1996). Determination of probable cause that a traffic offense has been committed, "'like
all probable cause determinations is fact dependent and will turn on what the officer knew
at the time he made the stop.'" (Emphasis sic.) Erickson at 10, quoting United States v.
-5-
Butler CA2020-08-085
Ferguson, 8 F.3d 385, 391 (6th Cir.1993). "[E]ven a de minimis traffic violation provides
probable cause for a traffic stop." State v. Williams, 12th Dist. Clinton No. CA2009-08-014,
2010-Ohio-1523, ¶ 13. The stop of a person riding a bicycle in violation of a traffic code is
governed by these same standards. See Willis, 2013-Ohio-2391 at ¶ 18-22.
{¶ 14} Section 373.01(a) of the Hamilton City Code provides that those provisions of
the city's traffic code "that are applicable to bicycles and electric bicycles apply whenever a
bicycle or electric bicycle is operated upon any street or upon any path set aside for the
exclusive use of bicycles." Section 337.02(a)(1) of the city's code requires that "[e]very
vehicle, other than a motorized bicycle, operated upon a street or a highway shall display
lighted lights and illuminating devices as required by this chapter during * * * [t]he time from
sunset to sunrise." Section 373.06(a), in turn, provides that
Every bicycle or electric bicycle when in use at the times
specified in Section 337.02 shall be equipped with the following:
(1) A lamp mounted on the front of either the bicycle or electric
bicycle or the operator that shall emit a white light visible from a
distance of at least five hundred feet to the front; and three
hundred feet to the sides. A generator-powered lamp that emits
light only when the bicycle or electric bicycle is moving may be
used to meet this requirement.
(2) A red reflector on the rear that shall be visible from all
distances from one hundred feet to six hundred feet to the rear
when directly in front of lawful lower beams of head lamps on a
motor vehicle.
(3) A lamp emitting either flashing or steady red light visible
from a distance of five hundred feet to the rear shall be used in
addition to the red reflector; If the lamp performs as a reflector
in that it is visible as specified in subsection (a)(2) of this section,
the red lamp may serve as the reflector and a separate reflector
is not required.
{¶ 15} At the suppression hearing, Officer Kettman's testimony established probable
cause for the traffic stop of appellant's bicycle on the basis that appellant was operating his
bicycle on the city's streets without a mounted light in violation of Hamilton City Code
-6-
Butler CA2020-08-085
Sections 337.02 and 373.06. The officer testified that around 9.00 p.m., after it had turned
dark outside, he observed appellant riding his bicycle eastbound on a sidewalk on Franklin
Street towards Millville Avenue. When the officer initiated the traffic stop after turning his
police cruiser around, an activity that only took "seconds" or less than a minute, appellant
was riding his bicycle on the sidewalk between Millville Avenue and Edgewood Avenue – a
location that was two intersections away from where Officer Kettman first observed
appellant. Considering the distance appellant traveled in the short amount of time it took
Officer Kettman to initiate the stop, it was objectively reasonable for the officer to believe
appellant had violated the city's bicycle-light ordinances by riding his bicycle onto the street
in order to cross the two intersections.
{¶ 16} As for appellant's argument that Officer Kettman had no way of knowing
whether appellant rode his bicycle on the street or got off the bicycle to walk it across the
intersections since the officer did not continuously observe appellant's travel, we note that
an officer does not need proof beyond a reasonable doubt of a defendant's actual guilt of
the violation to justify the traffic stop. As this court has previously recognized, "[t]he
probable cause standard does not require an actual showing of a [traffic] violation, just a
probability of the violation." Hentenaar, 2020-Ohio-4503 at ¶ 12. See also Wilmington v.
Lubbers, 12th Dist. Clinton No. CA2013-06-013, 2014-Ohio-3083, ¶ 12 (noting the
establishment of probable cause requires only a probability or substantial chance of criminal
activity, not an actual showing of such activity). Officer Kettman's observations provided
probable cause to initiate the stop of appellant's bicycle for a traffic violation and the stop
did not violate appellant's constitutional rights under the Fourth Amendment to the United
States Constitution or Section 14, Article I of the Ohio Constitution. The drugs recovered
on appellant's person following this lawful traffic stop were not subject to suppression, as
-7-
Butler CA2020-08-085
the discovery occurred following appellant's arrest on an outstanding arrest warrant and
appellant's admission to having drugs in his pants pocket.
{¶ 17} Furthermore, even if appellant's initial detention had violated his constitutional
right to be free from an unreasonable seizure, exclusion of the drugs found in his pants
pocket would be inappropriate under the attenuation doctrine. The attenuation doctrine
provides that evidence discovered as a result of unconstitutional police conduct is
admissible "when the connection between the unconstitutional police conduct and the
evidence is remote or has been interrupted by some intervening circumstance, so that 'the
interest protected by the constitutional guarantee that has been violated would not be
served by suppression of the evidence obtained.'" Utah v. Strieff, __ U.S. __, 136 S.Ct.
2056, 2061 (2016), quoting Hudson v. Michigan, 547 U.S. 586, 593, 126 S.Ct. 2159 (2006).
{¶ 18} In Strieff, an officer conducting surveillance of a suspected drug residence
stopped the defendant after observing him leave the residence. Id. at 2057. The officer
detained the defendant in a nearby parking lot and asked for his identification, which the
defendant provided. Id. The officer was notified by his dispatch that the defendant had an
outstanding arrest warrant for a traffic violation. Id. The officer arrested the defendant,
searched him, and found methamphetamine and drug paraphernalia. Id. The defendant
moved to suppress the evidence arguing it was derived from an unlawful investigatory stop.
Id. at 2058. The Utah Supreme Court ultimately ordered the evidence suppressed. Id.
{¶ 19} On appeal, the United States Supreme Court examined whether the discovery
of a valid arrest warrant was a sufficient intervening event to break the causal chain between
the unlawful stop and the discovery of drug-related evidence on the defendant's person. Id.
at 2061. The Court identified and applied the following three factors as necessary
considerations when applying the attenuation doctrine: (1) the "temporal proximity" between
the unconstitutional conduct and the discovery of the evidence, (2) the "presence of
-8-
Butler CA2020-08-085
intervening circumstances," and (3) the "purpose and flagrancy of the official misconduct."
Id. at 2061-2602, citing Brown v. Illinois, 422 U.S. 590, 95 S.Ct. 2254 (1975).
{¶ 20} The Court first noted that the temporal proximity between the unlawful stop
and the search favored suppressing the evidence as the officer discovered drug contraband
on the defendant only minutes after the illegal stop. Id. at 2062. However, the second
factor – the presence of intervening circumstances – strongly favored the state as the
outstanding warrant for the defendant's arrest predated the officer's investigation and was
"a critical intervening circumstance that [was] wholly independent of the illegal stop." Id. at
2062-2063. Once the officer discovered the warrant, he had an obligation to arrest the
defendant. Id. at 2062. And once the officer arrested the defendant, "it was undisputedly
lawful to search [the defendant] as an incident of his arrest." Id. at 2063. As for the third
factor – the "purpose and flagrancy of the official misconduct" – the court found that this
factor also strongly favored the state as the officer's "errors in judgment hardly [rose] to a
purposeful or flagrant violation of [the defendant's] Fourth Amendment rights." Id. The
court noted that "there [was] no indication that this unlawful stop was part of any systemic
or recurrent police misconduct" but rather was "an isolated instance of negligence that
occurred in connection with a bona fide investigation of a suspected drug house." Id.
Considering all three factors, the court held that "the evidence discovered on [the
defendant's] person was admissible because the unlawful stop was sufficiently attenuated
by the pre-existing arrest warrant." Id.
{¶ 21} Applying the factors set forth in Strieff to the facts in the present case, we find
that the methamphetamine discovered in appellant's pants pocket is admissible under the
attenuation doctrine. Assuming the initial stop was unlawful, the only factor favoring
appellant is the temporal proximity between the unlawful stop and the search that resulted
in the discovery of the drugs. This factor, however, is outweighed by consideration of the
-9-
Butler CA2020-08-085
second and third factors, which strongly favor admissibility of the evidence. Like in Strieff,
the presence of intervening circumstances, specifically the discovery of a preexisting
warrant for appellant's arrest, was a critical intervening circumstance wholly independent
from the illegal stop. Once the arrest warrant was discovered, Officer Kettman had an
obligation to arrest appellant and, once appellant was arrested, the officer was lawfully
permitted to conduct a search incident to the arrest. Finally, there was no indication that
Officer Kettman's stop of appellant was anything more than an error in judgment based on
a reasonable belief that appellant was in violation of the city's bicycle-light ordinance. This
isolated instance of negligence does not rise to the level of a purposeful or flagrant violation
of appellant's Fourth Amendment rights. Therefore, the methamphetamine found on
appellant's person is admissible pursuant to the attenuation doctrine as the unlawful stop
was sufficiently attenuated by the preexisting arrest warrant.
{¶ 22} Accordingly, for the reasons stated above, we find no error in the trial court's
denial of appellant's motion to suppress. Appellant's sole assignment of error is overruled.
{¶ 23} Judgment affirmed.
M. POWELL, P.J., and S. POWELL, J., concur.
- 10 -