DocketNumber: No. 2006-CA-18.
Citation Numbers: 878 N.E.2d 1077, 173 Ohio App. 3d 436, 2007 Ohio 5466
Judges: DELANEY, Judge.
Filed Date: 10/10/2007
Status: Precedential
Modified Date: 1/13/2023
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 438 {¶ 1} This is an appeal from the Perry County Municipal Court involving the question whether a state park officer can stop a boat to conduct a safety inspection without reasonable suspicion of wrongdoing.
{¶ 2} On June 4, 2005, defendant-appellant, Kevin M. Carr, was arrested for a violation of R.C.
{¶ 3} The following facts are taken from the testimony at the suppression hearing before the trial court on November 1, 2005:
{¶ 4} Park Officer Greg Bushee of the Ohio Department of Natural Resources was on routine patrol on the waters of Buckeye Lake State Park in Perry County, Ohio. Officer Bushee stopped appellant's pontoon boat to conduct a safety inspection. He explained that a "safety inspection" involves checking for life jackets, safety equipment, fire extinguisher, and boat registration. Upon stopping the boat, he observed approximately five to ten cans of alcoholic beverage on the floor of the boat. The officer advised appellant that it is illegal to consume alcoholic beverages on state waters. Officer Bushee requested appellant's registration. Officer Bushee noticed the smell of alcohol on appellant and noticed that his eyes were bloodshot and glassy. The officer determined that appellant was possibly under the influence of alcohol. Officer Bushee requested that appellant proceed to shore for field sobriety tests. On shore, Officer Bushee performed the one-leg-stand and heel-to-toe field sobriety tests. Officer Bushee signaled Corporal Edwards of the Buckeye Lake Police Department to perform the HGN (horizontal gaze nystagmus). Officer Bushee arrested appellant for a violation of R.C.
{¶ 5} It was the state's position at the suppression hearing that Officer Bushee was permitted to stop appellant's boat without articulable reasonable suspicion of *Page 439
any illegal activity based upon R.C.
{¶ 6} The trial court suppressed the HGN test results, but found the remaining field sobriety tests to be in substantial compliance with the Ohio Department of Health ("ODH") standards. Later, the trial court issued an amended entry also finding that there was probable cause to arrest appellant for intoxication.
{¶ 7} On March 28, 2006, the trial court orally overruled the remaining prong of appellant's motion to suppress on the issue of the initial stop of the boat. The trial court found that the officer was authorized to stop the boat for a "safety check/search."
{¶ 8} Appellant pleaded no contest to the charge and was fined $450 and sentenced to 60 days of incarceration. The trial court suspended 55 days of incarceration and ordered appellant to serve two days of actual incarceration and three days in a driving intervention program. Defendant also was placed on probation for two years.
{¶ 9} Appellant appeals, raising a single assignment of error:
{¶ 10} "I. The trial court erred by overruling defendant-appellant's motion to suppress."
{¶ 11} In his sole assignment of error, appellant argues that the initial stop of the boat was without suspicion of wrongdoing and therefore in violation of the
{¶ 12} An appellate court's review of a motion to suppress involves mixed questions of law and fact. State v.Burnside,
{¶ 13} The issue before this court is whether reasonable, articulable suspicion of illegal activity was required for Officer Bushee to stop appellant's boat in order to conduct a safety inspection pursuant to R.C.
{¶ 14} In State v. Botsch (1989),
{¶ 15} See also State v. LePard (1989),
{¶ 16} Appellate courts from other jurisdictions have recently addressed the constitutionality of similar boating statutes. In State v. Lecarros (2003),
{¶ 17} A different conclusion was reached by the Texas Supreme Court in Schenekl v. State
(Tex.Crim.App. 2000),
{¶ 18} In United States v.Villamonte-Marquez (1983),
{¶ 19} In contrasting the court's earlier precedent regarding the preference for fixed checkpoints and roadblocks, the court noted: "Customs officials do not have as a practical alternative the option of spotting all vessels which might have come from the open sea * * * in order to make fixed checkpoint stops. Smuggling and illegal importation of aliens by land may, and undoubtedly * * * does, take place away from fixed checkpoints or ports of entry, but much of it is at least along a finite number of identifiable roads. But while eventually maritime commerce on the inland waters of the United States may funnel into rivers, canals, and the like, which are more analogous to roads and make a `roadblock' approach more feasible, such is not the case in waters providing ready access to the seaward border, beyond which is only the open sea." Id. at 589,
{¶ 20} In this case, Officer Bushee testified that he stopped appellant's boat for a safety inspection. Officer Bushee did not observe appellant operating the boat in violation of any watercraft laws or any other laws he had authority to enforce. R.C.
{¶ 21} If an officer does not have reasonable suspicion to stop a water-craft, the officer may still do a safety inspection pursuant to a checkpoint system with controls and procedures in place that place limits on officer discretion. This *Page 442
system would be analogous to the license and safety inspection of vehicles on roadways. See State v. Howe (1989),
{¶ 22} We hold that a park officer may perform a safety inspection pursuant to R.C.
{¶ 23} We recognize that the state has a strong interest in ensuring boating and waterway safety for its citizens, but that interest can be realistically promoted through means other than random, sporadic stops with no limitations placed upon the officer's discretion in the field. The practicality of checkpoints either at docks or marinas or on the water (either at points of entry or no-wake zones) will depend on the specific body of water, but the use of checkpoints can be accomplished in order to decrease the intrusiveness of the stops and limit the discretion of the officers and consequent potential for abuse.
{¶ 24} We find that the motion to suppress the stop of appellant's watercraft should have been granted. Appellant's assignment of error is sustained.
{¶ 25} The judgment of the Perry County Municipal Court is reversed.
Judgment reversed.
GWIN and WISE, JJ., concur.
State v. Claytor , 85 Ohio App. 3d 623 ( 1993 )
State v. Lepard , 52 Ohio App. 3d 83 ( 1989 )
State v. Guysinger , 86 Ohio App. 3d 592 ( 1993 )
State v. Botsch , 44 Ohio App. 3d 59 ( 1989 )
State v. Deters , 128 Ohio App. 3d 329 ( 1998 )
State v. Howe , 65 Ohio App. 3d 540 ( 1989 )
State v. Lecarros , 187 Or. App. 105 ( 2003 )
Schenekl v. State , 30 S.W.3d 412 ( 2000 )
Commonwealth v. Lehman , 857 A.2d 686 ( 2004 )
Terry v. Ohio , 88 S. Ct. 1868 ( 1968 )
United States v. Villamonte-Marquez , 103 S. Ct. 2573 ( 1983 )