State v. Ware

[Cite as State v. Ware, 2019-Ohio-3885.]
IN THE COURT OF APPEALS OF OHIO
FOURTH APPELLATE DISTRICT
ROSS COUNTY
STATE OF OHIO, :
: Case No. 18CA3669
Plaintiff-Appellee, :
:
vs. : DECISION AND JUDGMENT
: ENTRY
REGINALD WARE, :
:
Defendant-Appellant. : Released: 09/23/19
_____________________________________________________________
APPEARANCES:
Roger Soroka, Joshua Bedtelyon, and Aaron Jones, Columbus, Ohio, for
Appellant.
Jeffery C. Marks, Ross County Prosecuting Attorney, and Pamela C. Wells,
Assistant Ross County Prosecuting Attorney, Chillicothe, Ohio, for
Appellee.
_____________________________________________________________
McFarland, J.
{¶1} This is an appeal from a Ross County Court of Common Pleas
judgment entry convicting Appellant, Reginald Ware, of tampering with
evidence. Appellant asserts that the trial court erred when (1) it denied his
motion to suppress the evidence, and (2) it denied his motion to exclude
witness testimony at the suppression hearing after a violation of the court’s
order for separation of witnesses. After reviewing the law and the record,
we find Appellant’s first assignment of error has merit. Therefore, we
Ross App. No. 18CA3669 2
vacate Appellant’s conviction, reverse the trial court’s judgment to the
extent that it denied Appellant’s motion to suppress, and remand the case to
the trial court for further proceedings consistent with this decision.
FACTS AND PROCEDURAL HISTORY
{¶2} After being stopped for a Chillicothe (“City”) traffic ordinance
violation on April 26, 2017, officers arrested Appellant after he allegedly
tried to conceal or ingest a baggie filled with white powder. Officers
believed that he was trying to conceal contraband. Appellant allegedly spit
out the bag onto the jail floor where its contents spilled. The baggie was
confiscated by law enforcement.
{¶3} On June 16, 2017, the State returned an indictment charging
Appellant with tampering with evidence in violation of R.C. 2921.12, a third
degree felony.
{¶4} On September 6, 2017, Appellant filed a motion to suppress all
evidence related to the traffic stop on April 26, 2017, which included the
baggie and the results of a urine test. Appellant argued that the police lacked
probable cause to initiate the traffic stop, detained Appellant longer than
necessary to complete the traffic stop, and police did not have Appellant’s
consent to have his urine withdrawn and tested.
Ross App. No. 18CA3669 3
{¶5} On February 2, 2018, the trial court held a suppression hearing
during which the following testimony was elicited.
{¶6} The State’s first witness, Officer Christopher King, a canine
officer for the Chillicothe Police Department, testified that on April 26, 2017
he headed to the Dairy Queen on North Bridge Street in Chillicothe after
being informed that Appellant was at that location, and then was backup
officer for the officer who initiated a traffic stop of Appellant. Officer King
testified that he was the second officer on the scene and estimated that he
arrived one to two minutes after the traffic stop by Officer Rhodes. Officer
King testified that fellow Officer Short arrived shortly thereafter. Officer
King testified that once he was at the scene, he was instructed to deploy his
canine for a “free air sniff” around Appellant’s vehicle. Officer King then
narrated to the court his body camera video of his canine circling
Appellant’s vehicle and then sitting, which, according to Officer King, was
an indication the canine had detected drugs. Officer King testified that
Officer Rhodes then removed Appellant from his vehicle. Officer King
testified that once Appellant was out of his vehicle, it appeared that he
attempted to swallow something, and tried to “evade” the officers. Officer
King testified that he observed Appellant using his fingers to “shove stuff
Ross App. No. 18CA3669 4
down his throat,” and consequently Officer King did not believe Appellant
was choking, but instead was attempting to swallow contraband.
{¶7} Officer King testified that based on his canine’s indication, he
searched Appellant’s vehicle and discovered marijuana. The court observed
a portion of Officer King’s body camera video of the incident during his
testimony.
{¶8} On cross examination, Officer King testified that he was on his
way to Appellant’s location prior to the traffic stop because officers were
aware of Appellant’s criminal history, as Officer King explained: “Yes. You
know, this - - we don’t do this to ordinary citizens. We take totality of the
circumstances from the tips we receive plus prior engagements and from the
- - you know, any informant information. You know, I believe it’s our duty
to protect our city and these people are going to come to our attention and
their [sic] either going to confirm or dispel any of these tips.” When asked
about his reference to “tips,” Officer King testified that the department had
received tips that Appellant had trafficked drugs at “Beau Circle” and
“Columbus Street,” and while he had not followed up on any of the tips, his
unit had. However, Officer King admitted that he had not received any tips
that Appellant had engaged in trafficking that day.
Ross App. No. 18CA3669 5
{¶9} After the conclusion of Officer King’s testimony, the judge
asked several questions. The judge noted that Appellant was charged with
destroying evidence. He then asked the prosecutor what evidence she was
referring to and prosecutor responded that the baggie that Appellant had in
his mouth contained cocaine. The prosecutor stated that the baggie was
recovered once Appellant was at the jail after he vomited, and that the
substance in the baggie tested positive for cocaine. She testified that after
Appellant arrived at the jail they took him to the hospital because they feared
he might have consumed some of the cocaine. The prosecutor further stated
that Appellant was treated and released back to jail. The prosecutor stated
that a urinalysis confirmed that cocaine was in Appellant’s urine. Finally,
the prosecutor stated that the baggie was in evidence “to be sent off.”
{¶10} The State’s next witness, Sargent Short, testified that at the time
of Appellant’s arrest, he was working in the Drug Interdiction Unit. Sargent
Short testified that he heard over the radio that Officer Rhodes had made a
traffic stop and he proceeded to the Dairy Queen as backup. The State
proceeded to show the video from Sargent Short’s body camera. Sargent
Short testified that upon arriving he was informed by Officer King that he
had recovered drugs from Appellant’s vehicle on another occasion. Sargent
Short testified that because Officer Rhodes was having a conversation with
Ross App. No. 18CA3669 6
Appellant on the driver side of the vehicle, he positioned himself near the
passenger side of the vehicle when he noticed Appellant was breathing
heavily and putting a lot of food in his mouth. Sargent Short testified that
because of Officer King’s information and Appellant’s actions, he ordered
Officer King to “run” his canine around Appellant’s vehicle while Officer
Rhodes was verifying Appellant’s information.
{¶11} Sargent Short testified that after Officer’s King’s canine alerted
to Appellant’s vehicle, the officers asked Appellant to exit his vehicle.
Sargent Short testified that he noticed a strong odor of an air fresher as
Appellant exited his vehicle, which is often used to cover drug odors, and
that Appellant had a “bulge” in his mouth and was chewing. Sargent Short
testified that after Appellant spit out some food, he asked Appellant to open
his mouth wider, but Appellant stuck his fingers in his throat and started
gagging and coughing. Sargent Short testified that he told Appellant to
cough thinking Appellant might be choking. However, he testified that
Appellant was pulling away and continuing to stick his fingers in his mouth
until he pulled out a baggie that contained a white substance, then
Appellant’s demeanor changed and he fled. Sargent Short testified that the
officers caught Appellant and handcuffed him. Sargent Short testified that
Appellant still had a “bulge” in his mouth and he was still chewing.
Ross App. No. 18CA3669 7
{¶12} On cross examination, Sargent Short testified that he saw
Appellant pull a baggie with a white substance out of his mouth, but
admitted that it could not be seen in his body camera video.
{¶13} After the conclusion of Sargent Short’s testimony, defense
counsel moved to strike any testimony from the State’s witnesses “moving
forward from anybody that was outside” based on the State’s violation of the
court’s witness separation order. Defense counsel asserted that the
prosecutor spoke to Sargent Short outside the courtroom after he was
finished testifying about his testimony, within earshot of potential witnesses.
Counsel alleged he could hear the discussion in the courtroom and therefore
assumed that witnesses were within earshot of that discussion.
{¶14} In response, the prosecutor admitted to talking to Sargent Short,
but asserted the officer closest to her was not testifying in Appellant’s case.
The prosecutor further asserted that she did not believe that the two officers
who had already testified, Officer King and Sargent Short, would have had
time to discuss their testimony and neither testified differently from what
their video showed. The court then summoned the State’s additional
witnesses, Detectives Wallace and Taczak, and Officer Rhodes, into the
courtroom. The court notified the witnesses of the witness separation order
and its purpose of keeping witnesses from corroborating their testimony.
Ross App. No. 18CA3669 8
The court told the witnesses not to discuss their testimony with the other
witnesses and to leave the court once their testimony was complete. The
court then asked defense counsel “is that sufficient, counsel, or do you want
something else?” Counsel responded: “At this time, your honor, that’s
sufficient.”
{¶15} The State then called Detective Taczak of the Chillicothe Police
Department, who was part of the drug unit. Detective Taczak testified that
she was familiar with Appellant from another case, and heard of Appellant’s
traffic stop over the radio and observed it from a nearby parking lot until
Appellant fled. She testified that she approached Appellant once he had
been apprehended and asked him to spit out whatever was in his mouth. She
testified that Appellant’s mouth was bleeding and his head was face down so
she could not tell if there was anything in his mouth.
{¶16} Detective Taczak testified that when she arrived at the jail,
Sargent Short advised her that Appellant spit out what he had in his mouth
onto the floor of the jail and stomped on it, causing the white powder to spill
onto the floor. Detective Taczak testified that she conducted a field test on
the powder for cocaine and it was positive.
{¶17} On cross examination, Detective Taczak testified that she had
not received any tip that Appellant had been involved in drug activity that
Ross App. No. 18CA3669 9
day. Detective Taczak confirmed that she did not recover the powder from
the floor of the jail herself. She also admitted that although the area where
Appellant was initially held was equipped with video surveillance, she did
not check the video to confirm that Appellant had in fact spit the baggie on
the floor. Detective Taczak testified that she never tested the baggie that
contained the powder.
{¶18} Detective Wallace of the Chillicothe Police Department
testified for the State, asserting that he was familiar with Appellant because
of prior drug trafficking. On the date of Appellant’s arrest, Detective
Wallace noticed Appellant pulling into the Dairy Queen from Bridge Street
in Chillicothe. Detective Wallace testified that when Appellant exited the
Dairy Queen, he made a right or northbound turn onto North Bridge Street,
which has two lanes travelling northbound, but “[Appellant] turned across
one lane into the lane closest to the double – the center line – the double
yellow line instead of turning to the lane closest to him which would have
been the curb lane.” Detective Wallace testified that Appellant violated
Chillicothe ordinance 331.10, which he testified states: “The driver of a
vehicle intending to turn at an intersection shall be governed by the
following rules: approach for a right turn and a right turn shall be made as
close as practical to the right-hand curb or edge of the roadway.” Detective
Ross App. No. 18CA3669 10
Wallace testified that he put out notice of the violation on the channel used
by the drug unit, which included Officers Rhodes, King, Short, and
Detective Taczak. Detective Wallace testified that Officer Rhodes
responded that he would stop Appellant. He testified that it is normal
practice for officers in unmarked cars to notify officers in marked cars about
traffic violations. Detective Wallace testified that while he was observing
the traffic stop and noticed Appellant flee, he got out of his car and
attempted to cut off Appellant, but Officers Rhodes, King, and Short got him
to the ground first. Detective Wallace testified that he noticed Appellant
was putting his hands near his mouth and assumed he was putting something
in or taking something out of his mouth and noticed a bulge in his cheek
when he got to Appellant. Detective Wallace testified that based on his
experience and after speaking with Appellant, it was his belief that
Appellant was attempting to conceal something in his mouth.
{¶19} Detective Wallace testified that Appellant was transported to
the Ross County Jail. He further testified that when he arrived at the jail, he
explained to Appellant that if he brought contraband into the jail he would
face further charges. Detective Wallace testified that a baggie was hanging
out of Appellant’s mouth, which he sucked back in when one of the
corrections officers tried to remove it, but then spit it out on the floor, which
Ross App. No. 18CA3669 11
Detective Wallace believed was collected as evidence. The State then
showed a video. Detective Wallace testified that once inside the booking
area, Appellant vomited. Detective Wallace testified that the jail would not
accept Appellant until he was medically cleared, so he called a squad, which
transported Appellant to Adena Regional Medical Facility. Detective
Wallace testified he went to the hospital as well. He also testified there were
officers from the Adena Police Department, as well as hospital security
guards. Detective Wallace testified that the hospital staff drew bodily fluids
from Appellant and at the staff’s request he helped hold down Appellant
while the fluids were withdrawn, but taking the fluids was not at Detective
Wallace’s request.
{¶20} On cross examination, Detective Wallace testified that while he
was observing Appellant the day prior to his arrest, he saw nothing that
would have led him to believe that Appellant was trafficking drugs.
Detective Wallace testified that while he held Appellant down, hospital staff
inserted something into Appellant’s penis and drew his blood. When asked
if these procedures were required for Appellant to be cleared to return to the
jail, Detective Wallace testified “what [the hospital] has to do to clear
someone, I have no idea. * * * They asked if we would help [Adena] police
and security staff to restrain [Appellant] so they could perform the medical
Ross App. No. 18CA3669 12
procedures they needed to perform.” He testified that after these procedures
were completed Appellant was transported back to the jail.
{¶21} The State’s next witness was Officer Rhodes of the Chillicothe
Police Department. At the time of Appellant’s arrest, Officer Rhodes was a
uniformed officer with the special investigations unit. Officer Rhodes
testified that on the day of Appellant’s arrest, he heard Detective Wallace’s
radio broadcast that Appellant had committed a traffic violation and headed
for Appellant’s location. Officer Rhodes testified that after he located
Appellant, he executed a traffic stop. Officer Rhodes testified that Officer
King arrived at the scene next. Officer Rhodes testified that he introduced
himself as a police officer to Appellant and then asked for his license,
registration, and insurance. He testified that he could not remember the
citation he gave to Appellant, but it did result in a ticket. Officer Rhodes
testified that the ticket indicated Appellant had an expired license, had made
a “marked lanes” violation, and violated city ordinance 331.08. However,
Officer Rhodes testified that both named violations were in fact mistaken.
Officer Rhodes testified that the actual violation committed by Appellant
that day is found in city ordinance 331.10, which requires a motorist when
turning right at an intersection, to do so as close to the right-hand curb as
practical. Officer Rhodes testified that he determined Appellant’s license
Ross App. No. 18CA3669 13
was expired as Officer King’s canine sniffed Appellant’s vehicle and alerted
to the presence of drugs. Officer Rhodes testified when the canine alerted,
he removed Appellant from his vehicle when he noticed Appellant had put
something in his mouth the moment he opened his door. Officer Rhodes
testified that he saw french fries in Appellant’s car. Officer Rhodes
estimated that from the time they removed Appellant from his car until he
started choking was a minute to a minute and a half. Officer Rhodes
testified that Appellant starting sticking his fingers in his throat and Sargent
Short stated that there was a baggie in Appellant’s mouth. Officer Rhodes
testified that when Appellant fled, the officers chased him and took him to
the ground. Officer Rhodes testified that Appellant still “obviously had
something in his mouth.” Officer Rhodes testified that even after Appellant
was placed in the cruiser, Appellant still had a “bulge” in his mouth that he
was “manipulating.”
{¶22} Officer Rhodes testified that a video showed him putting on
rubber gloves to pick up the baggie that Appellant spit onto the floor of the
jail. Officer Rhodes testified that he rode from the jail to the hospital with
Appellant in the squad. Officer Rhodes testified that he never asked any of
the staff at the hospital to draw Appellant’s blood. Officer Rhodes testified
Ross App. No. 18CA3669 14
that he remained at the hospital until Appellant was released, at which time
he took Appellant back to the jail.
{¶23} On cross examination, Officer Rhodes testified that Detective
Wallace radioed that Appellant made a marked lanes violation or turning
violation, but Officer Rhodes could not remember which one. Officer
Rhodes also testified that Officer King never verbally told him that his
canine alerted to Appellant’s vehicle, but asserted that having worked with
Officer King and Sargent Short for two years he knew that when a canine
sits, that is an alert. Officer Rhodes confirmed that the jail would not accept
Appellant until he was medically cleared because he vomited and might be
ill. He also testified that he informed the hospital that Appellant was
suspected of having taken drugs. Officer Rhodes also admitted the
substance recovered from the jail floor had not yet been sent for testing to
the Ohio Bureau of Criminal Identification and Investigation (BCI) almost
ten months after the arrest. At that point, the prosecutor interjected that
tampering with evidence was the only charge pending.
{¶24} On February 9, 2018, the court issued a “preliminary decision”
that was subject to post-hearing memoranda. The court made the following
preliminary findings and conclusions: (1) the traffic stop for making an
improper turn was supported by reasonable suspicion; (2) the traffic stop
Ross App. No. 18CA3669 15
was not invalidated by the officer’s mistaken reference to the wrong citation
and violation; (3) during the stop the canine properly indicated that
Appellant’s vehicle contained drugs, permitting the officer to make
Appellant exit his vehicle; (4) officers saw Appellant pushing an object into
his mouth and he attempted to flee, justifying officers to transport Appellant
to jail; (5) video showed Appellant spitting out a baggie and its contents onto
the floor of the jail and vomiting and the baggie and its contents were
properly recovered by an officer but had yet to be tested and the field test
results are inadmissible; and (6) because Appellant vomited the jail would
not accept him, so he was transported to the hospital where he was subject to
non-consensual blood and urine withdraws.
{¶25} On April 4, 2018, the trial court issued a judgment entry
granting in part and denying in part Appellant’s motion to suppress. The
trial court found that the police had reasonable suspicion that Appellant had
violated city ordinance 331.10 by not using the curb lane to make a right-
hand turn, thereby justifying the traffic stop. The court further found that
Officer Rhodes correctly described Appellant’s traffic violation of making
an improper turn under city code 331.10 in the citation issued, and therefore
his mistaken citation of city code 331.08 did not invalidate the traffic stop.
Ross App. No. 18CA3669 16
{¶26} The court further found that paragraphs 3, 4, 5, and 6 from its
preliminary decision remain unchanged.
{¶27} The trial court’s judgment entry stated that the prosecution
indicated that it did not intend to introduce the results of Appellant’s urine
test, but would introduce the February 21, 2018 BCI lab results of the baggie
that Appellant spit onto the jail floor. The defense objected, stating that it
would have more thoroughly cross-examined the witnesses had it known
about the baggie test results at the time, such as the chain of custody. The
court held that the chain of custody is not a suppression issue, and Appellant
should have anticipated that the State may have the baggie tested, and
therefore cross-examined witnesses about their seizure of the baggie.
{¶28} Accordingly, the trial court denied Appellant’s motion to
suppress the results of the testing of the baggie, but granted Appellant’s
motion to suppress the hospital test results and Appellant’s medical records.
{¶29} On July 18, 2018, Appellant pleaded no contest to tampering
with evidence. The trial court found Appellant guilty and sentenced him to
12 months in prison with three years of discretionary post-release control. It
is from this judgment that Appellant appeals, asserting two assignments of
error.
Ross App. No. 18CA3669 17
ASSIGNMENTS OF ERROR
“I. THE TRIAL COURT ERRED WHEN IT DENIED
APPELLANT’S MOTION TO SUPPRESS EVIDENCE.
II. THE TRIAL COURT ERRED WHEN IT DENIED
WARE’S MOTION TO EXCLUDE WITNESS
TESTIMONY AT THE SUPPRESSION HEARING
AFTER A VIOLATION OF THE COURT’S ORDER
FOR SEPARATION OF WITNESSES.”
ASSIGNMENT OF ERROR I
{¶30} In his first assignment of error, Appellant initially argued that
the trial court improperly used the reasonable suspicion standard that
criminal behavior had occurred to evaluate the reasonableness of the traffic
stop, instead of using the probable cause standard.
{¶31} Appellant also argued that the traffic stop was merely a pretext
for stopping Appellant in order to investigate him. In support, Appellant
cites an excerpt from Officer King’s trial testimony in which he stated: “You
know, this - - we don’t do this to ordinary citizens.”
{¶32} Finally, Appellant argued that the ordinance upon which his
traffic stop was based does not state that a motorist must always be in the
rightmost lane when making a right-hand turn, but only close as practical to
the right-hand side of the road. And, therefore, he argues, because the State
did not submit proof of that element it failed its burden of proving by a
Ross App. No. 18CA3669 18
preponderance of the evidence that the stop was initiated with sufficient
cause to be constitutional under the Fourth Amendment.
{¶33} In response, the State argued that a traffic stop may be
reasonable under either the reasonable suspicion or probable cause
standards, citing State v. Mays, 119 Ohio St. 3d 406, 894 N.E.2d 1204. The
State also argued that if the traffic stop is reasonable under the Fourth
Amendment then other motivations by law enforcement are irrelevant to the
analysis. And finally, the State argued that like Mays the failure of the State
to prove that Appellant made a turn in the right-hand lane could be a defense
to the violation, but it is irrelevant to determining the reasonableness of the
traffic stop.
{¶34} In his reply, Appellant concedes that under Mays a traffic stop
can be found to be reasonable under either the probable cause standard or the
reasonable suspicion standard, which the trial court applied.
{¶35} However, Appellant also argues that city code 331.10, which
sets outs rules for turning at intersections, did not apply to his traffic stop
because his turn did not occur at an intersection as defined in city code
301.17(a). Therefore, he argues, the traffic stop was unreasonable under the
Fourth Amendment.
Ross App. No. 18CA3669 19
ANALYSIS
1. Standard of Review
{¶36} The standard of review of a decision addressing a motion to
suppress presents a mixed question of law and fact. State v. Ralston, 4th
Dist. Highland No. 16CA9, 2017-Ohio-7057, ¶ 6. On review, we must
accept the trial court’s determination of factual issues and evaluation of
credibility of witnesses if supported by competent, credible evidence. Id.
However, accepting those facts as true, we have a duty to conduct a de novo
review of “whether the facts satisfy the applicable legal standard.” Id.,
citing State v. Hobbs, 133 Ohio St. 3d 43, 2012-Ohio-3886, 975 N.E.2d 965,
¶ 8.
2. Traffic Stops
{¶37} “ ‘The Fourth Amendment to the United States Constitution and
the Ohio Constitution, Article I, Section 14, prohibit unreasonable searches
and seizures.’ ” State v. Taylor, 4th Dist. Lawrence No. 15CA12, 2016-
Ohio-2781, ¶ 31, quoting State v. Emerson, 134 Ohio St. 3d 191, 2012-Ohio-
5047, 981 N.E.2d 787, ¶ 15. “The constitutional provisions contain nearly
identical language and have been interpreted to afford the same protection.”
Id., citing State v. Hoffman, 141Ohio St.3d 428, 2014-Ohio-4795, 25 N.E.3d
993 N.E.3d 993, ¶ 11. “ ‘[S]earches conducted outside the judicial process,
Ross App. No. 18CA3669 20
without prior approval by judge or magistrate, are per se unreasonable under
the Fourth Amendment – subject only to a few specifically established and
well-delineated exceptions.’ ” State v. Debrossard, 4th Dist. Ross No.
13CA3395, 2015-Ohio-1054, ¶ 10, quoting Katz v. United States, 389 U.S.
347, 357, 88 S. Ct. 507, 19 L. Ed. 2d 576 (1967). “Once the defendant
demonstrates that he was subjected to a warrantless search or seizure, the
burden shifts to the state to establish that the warrantless search or seizure
was constitutionally permissible.” Id., citing Roberts at ¶ 98; Maumee v.
Weisner, 87 Ohio St. 3d 295, 297, 720 N.E.2d 507 (1999); Xenia v.
Wallace, 37 Ohio St. 3d 216, 524 N.E.2d 889 (1988), paragraph two of the
syllabus.
{¶38} A traffic stop initiated by a law enforcement officer is
a warrantless Fourth Amendment seizure. State v. Rose, 4th Dist. Highland
No. 06CA5, 2006-Ohio-5292, ¶ 14, citing Whren v. United States, 517 U.S.
806, 809, 116 S. Ct. 1769, 135 L. Ed. 2d 89 (1966). However, “a traffic stop
is constitutionally valid if an officer has a reasonable and articulable
suspicion that a motorist has committed, is committing, or is about to
commit a crime.” State v. Brandenburg, 2012-Ohio-4926, ¶ 13, citing
Delaware v. Prouse (1979), 440 U.S. 648, 663, 99 S. Ct. 1391. A traffic stop
Ross App. No. 18CA3669 21
may also be reasonable under the more rigorous probable cause standard.
State v. Mays, 119 Ohio St. 3d 406, 2008-Ohio-4539, 894 N.E.2d 1204, ¶ 23.
{¶39} “[I]f an officer observes a suspect commit a traffic violation,
the officer then possesses both a reasonable suspicion of criminal activity
and probable cause to stop the vehicle.” State v. McDonald, 4th Dist.
Washington No. 04CA7, 2004-Ohio-5395, ¶ 20. “In traffic stop cases that
do not involve a specific violation of traffic laws or regulations, courts must
determine whether an officer possessed a reasonable suspicion of criminal
activity, based on articulable facts, to stop a vehicle and to detain the
driver.” State v. Tarlton, 4th Dist. Pike No. 02CA688, 2002-Ohio-5795,
¶ 10.
{¶40} In Heien v. North Carolina, 574 U.S. 54, 135 S. Ct. 530, 536,
190 L. Ed. 2d 475 (2014), the Supreme Court recognized that if an officer
initiating a traffic stop makes a reasonable mistake of law, the stop may still
be reasonable under the Fourth Amendment. In so holding, the court
recognized that reasonableness is the touchstone of Fourth Amendment
jurisprudence and “[t]o be reasonable is not to be perfect, and so the Fourth
Amendment allows for some mistakes on the part of government officials,
giving them ‘fair leeway for enforcing the law in the community's
protection.’ ” Id., quoting Brinegar v. United States, 338 U.S. 160, 176, 69
Ross App. No. 18CA3669 22
S. Ct. 1302, 93 L. Ed. 1879 (1949). After recognizing that searches and
seizures based on some reasonable mistakes of fact may be constitutional,
the court went on to state that reasonable men make mistakes of law, too,
and such mistakes are no less compatible with the concept of reasonable
suspicion. Reasonable suspicion arises from the combination of an officer's
understanding of the facts and his understanding of the relevant law. The
officer may be reasonably mistaken on either ground. Whether the facts turn
out to be not what was thought, or the law turns out to be not what was
thought, the result is the same: the facts are outside the scope of the law.
There is no reason, under the text of the Fourth Amendment or our
precedents, why this same result should be acceptable when reached by way
of a reasonable mistake of fact, but not when reached by way of a similarly
reasonable mistake of law. Id., citing Heien v. North Carolina, 574 U.S. 54,
135 S. Ct. 530, 536, 190 L. Ed. 2d 475 (2014).
{¶41} Therefore, “ ‘[t]he existence of probable cause [or reasonable
suspicion] depends on whether an objectively reasonable police officer
would believe that [the driver's] conduct * * * constituted a traffic violation,
based on the totality of the circumstances known to the officer at the time of
the stop.’ ” State v. Levine, 4th Dist. Washington No. 18CA19, 2019-Ohio-
265, ¶ 25, quoting Bowling Green v. Godwin, 110 Ohio St. 3d 58, 2006-
Ross App. No. 18CA3669 23
Ohio-3563, 850 N.E.2d 698, at ¶ 16. This “objective standard * * * requires
officers to have a reasonable knowledge of what the law prohibits.” State v.
Rees, 4th Dist. Gallia No. 88CA17, 1989 WL 145614, at *7.
{¶42} Courts applying Heien have recognized that if a statute is
unambiguous in the scope of its application, it is not objectively reasonable
for an officer to charge an individual with a violation of that statute within
the context of the Fourth Amendment. See, e.g., Sinclair v. Lauderdale Cty.,
Tennessee, 6th Cir. No. 15-6134, 652 Fed.Appx. 429, United States v.
Stanbridge, 813 F.3d 1032, 1037 (7th Cir. 2016), United States v. Alvarado-
Zarzo, 782 F.3d 246, 250 (5th Cir. 2015), State v. Eldridge, 790 S.E.2d 740,
743-44 (N.C. App. 2016), State v. Cortez, 512 S.W.3d 915, 924-25 (Tex.
App. 2017), State v. Rand, 209 So. 3d 660, 665–66 (Fla. App. 2017). “[A]n
officer can gain no Fourth Amendment advantage through a sloppy study of
the laws he is duty-bound to enforce.” Heien, 135 S. Ct. at 539-540.
{¶43} The traffic stop initiated by Officer Rhodes, pursuant to
Detective Wallace’s observation of Appellant, was based on Chillicothe
(“City”) ordinance 331.10, entitled “Turning at Intersections,” which
provides in pertinent part that “(a) The driver of a vehicle intending to turn
at an intersection shall be governed by the following rules: (1) Approach for
a right turn and a right turn shall be made as close as practicable to the right-
Ross App. No. 18CA3669 24
hand curb or edge of the roadway.” (Emphasis added.) City ordinance
301.17 states: “ ‘Intersection’ means: (a) The area embraced within the
prolongation or connection of the lateral curb lines, or, if none, the lateral
boundary lines of the roadways of two highways that join one another at, or
approximately at, right angles, or the area within which vehicles traveling
upon different highways that join at any other angle might come into
conflict. The junction of an alley or driveway with a roadway or highway
does not constitute an intersection unless the roadway or highway at the
junction is controlled by a traffic control device. (Emphasis added.)
{¶44} Considering that city ordinance 331.10 provides rules that apply
specifically to intersections and city ordinance 301.17 states that the junction
between a driveway or alley and a roadway is not an intersection, it is clear
that city ordinance 331.10 does not apply to turns made from driveways or
alleys onto a city street, if no traffic control device is present. State v.
Rubsam, 9th Dist. Medina No. 18CA0089-M, 2019-Ohio-2153, ¶ 11. (R.C.
4115.25(A) requires that on roadways of sufficient width, a vehicle * * *
shall be driven upon the right half of the roadway. The vagueness of the “of
sufficient width” language means that “a law enforcement officer could
* * * reasonably err with respect to facts or law in conducting a valid traffic
stop” for failing to drive on the right half of the roadway.)
Ross App. No. 18CA3669 25
{¶45} In viewing the Google aerial and street-view maps at 171 North
Bridge Street in Chillicothe, the location of the Dairy Queen where
Appellant was stopped, there is no intersection as defined in ordinance
331.10 at the point of egress from the Dairy Queen to North Bridge Street.
Rather, an unnamed driveway connects the Dairy Queen parking lot to
Bridge Street, and there is no traffic control device at that location.1
Accordingly, ordinance 331.10 did not apply to the turn Appellant made
from the Dairy Queen driveway onto North Bridge Street on April 26, 2017.
“This is not a case where the law in question is ‘genuinely ambiguous, such
that overturning the officer’s judgment requires hard interpretive
work[.]’ ” Harris v. State, 344 Ga.App. 572, 575, 810 S.E.2d 660 (2018),
quoting Heien, 135 S. Ct. at 541 (Kagan, J., concurring). In fact, the citation
upon which the traffic stop was initiated stated that Appellant’s vehicle was
“turning from a private drive onto N. Bridge St. N/B. Once the vehicle
turned onto N. Bridge St., it immediately got into the left-hand lane and not
into the right curb lane.” (Emphasis added.) Here, and for argument sake,
assuming that it was reasonable for Detective Wallace and Officer Rhodes to
misapply the application of ordinance 311.10, Officer Rhodes, who actually
1
“Evid.R. 201(B) permits courts to take judicial notice of facts which are not subject to reasonable dispute
and which are ‘capable of accurate and ready determination by resort to sources whose accuracy cannot
reasonably be questioned.’ ” Wiseman v. Cambria Prod. Co., 61 Ohio App. 3d 294, 300, 572 N.E.2d 759
(4th Dist.), quoting Evid.R. 201(B).
Ross App. No. 18CA3669 26
stopped Appellant and issued the citation, effectively admitted that
Appellant’s turn was not governed by ordinance 311.10 because he cited
Appellant for making an improper turn from a driveway that had no traffic
control device. As such, we have little difficulty in holding that under an
objective reasonable police officer standard, Officer Rhodes, under the
totality of the circumstances at the time, would not have believed that
Appellant’s conduct constituted a traffic violation.
{¶46} Before we conclude, we feel compelled to address one last
issue. Appellant argues that Officer King’s testimony - “You know, this - -
we don’t do this to ordinary citizens” - indicates that the stop was a mere
pretext to investigate Appellant.
{¶47} The testimony of Officers King and Rhodes, Sargent Short, and
Detectives Wallace and Taczak, as part of the drug task force, indicates that
they were following and observing Appellant because of his prior dealing in
drugs. When read in context, Officer King’s testimony at the suppression
hearing – “You know, this - - we don’t do this to ordinary citizens” – refers,
not to why the officers stopped Appellant, but to why Officer King was
heading to the Dairy Queen where Appellant had been spotted even before
Officer Rhodes initiated the traffic stop. It is apparent that these officers and
detectives were surveilling Appellant and waiting for him to commit a traffic
Ross App. No. 18CA3669 27
violation that would allow them to stop him and possibly search him for
drugs. However, “mere surveillance in public places does not implicate the
protection of the Fourth Amendment’s prohibition against unreasonable
searches and seizures.” State v. Harlow, 4th Dist. Washington No. 13CA29,
2014-Ohio-864, ¶ 12.
{¶48} Nevertheless, because we conclude that the traffic stop was
unreasonable under the totality of the circumstances, Appellant’s
constitutional rights were violated. Therefore, the trial court erred to the
extent that it denied Appellant’s motion to suppress. Because we find merit
in Appellant’s first assignment of error, we decline to address Appellant’s
second assignment of error, which has become moot.
CONCLUSION
{¶49} We vacate Appellant’s conviction, reverse the trial court’s
judgment to the extent that it denied Appellant’s motion to suppress, and
remand this matter to the trial court for further proceedings consistent with
this opinion.
CONVICTION VACATED,
JUDGMENT REVERSED, AND
CAUSE REMANDED FOR
FURTHER PROCEEDINGS
CONSISTENT WITH THIS
OPINION.
Ross App. No. 18CA3669 28
Abele, J., dissenting:
{¶50} I respectfully dissent. Although I concede that this case
presents a difficult and close issue, I agree with the trial court’s view that the
officer who observed the appellant’s alleged improper turn had a reasonable
suspicion for the traffic stop, regardless of the officer’s misunderstanding of
the law or mistaken reference to the provisions of the Chillicothe city code
of ordinances.
{¶51} I agree with the principal opinion that the existence of probable
cause or reasonable suspicion depends on whether an objectively reasonable
police officer would believe that, based upon the totality of the
circumstances, a traffic violation has occurred. However, probable cause for
a traffic stop may exist even if an officer may not fully understand the law
that the driver allegedly violated. Thus, the fact that a driver could not be
ultimately convicted of a traffic offense is not determinative of whether an
officer acted reasonably in making the traffic stop. State v. Cronin, 1st Dist.
Hamilton No. C100266, 2011-Ohio-1479.
{¶52} In the case sub judice, I agree with the trial court’s conclusion
that the officer acted reasonably under the circumstances in making the
traffic stop, even though the appellant’s actions may not have actually
constituted a violation under the language of the city ordinances. Also, the
Ross App. No. 18CA3669 29
trial court apparently detected no improper conduct, or less than good faith
effort on the part of the officer in their attempt to enforce traffic law and a
perceived violation.
{¶53} Thus, based upon the foregoing reasons, I believe that we
should overrule appellant’s assignment of error and affirm the trial court’s
judgment.
Ross App. No. 18CA3669 30
JUDGMENT ENTRY
It is ordered that the CONVICTION BE VACATED, THE
JUDGMENT BE REVERSED, AND CAUSE REMANDED FOR
FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION. Costs
assessed to Appellee.
The Court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this Court directing
the Ross County Common Pleas Court to carry this judgment into execution.
IF A STAY OF EXECUTION OF SENTENCE AND RELEASE
UPON BAIL HAS BEEN PREVIOUSLY GRANTED BY THE TRIAL
COURT OR THIS COURT, it is temporarily continued for a period not to
exceed sixty days upon the bail previously posted. The purpose of a
continued stay is to allow Appellant to file with the Supreme Court of Ohio
an application for a stay during the pendency of proceedings in that court. If
a stay is continued by this entry, it will terminate at the earlier of the
expiration of the sixty day period, or the failure of the Appellant to file a
notice of appeal with the Supreme Court of Ohio in the forty-five day appeal
period pursuant to Rule II, Sec. 2 of the Rules of Practice of the Supreme
Court of Ohio. Additionally, if the Supreme Court of Ohio dismisses the
appeal prior to expiration of sixty days, the stay will terminate as of the date
of such dismissal.
A certified copy of this entry shall constitute the mandate pursuant to
Rule 27 of the Rules of Appellate Procedure.
Smith, P.J.: Concurs in Judgment and Opinion.
Abele, J.: Dissents with Dissenting Opinion.
For the Court,
BY: ______________________________
Matthew W. McFarland, Judge
NOTICE TO COUNSEL: Pursuant to Local Rule No. 14, this
document constitutes a final judgment entry and the time period for
further appeal commences from the date of filing with the clerk.