State v. Billings

[Cite as State v. Billings, 2021-Ohio-2194.]
IN THE COURT OF APPEALS
FIRST APPELLATE DISTRICT OF OHIO
HAMILTON COUNTY, OHIO
STATE OF OHIO, : APPEAL NOS. C-200245
C-200246
Plaintiff-Appellant, : TRIAL NOS. 19CRB-11129A
19CRB-11129B
vs. :
IMMANUEL BILLINGS, :
O P I N I O N.
Defendant-Appellee. :
Criminal Appeals From: Hamilton County Municipal Court
Judgments Appealed From Are: Reversed and Cause Remanded
Date of Judgment Entry on Appeal: June 30, 2021
Andrew Garth, Interim City Solicitor, William T. Horsley, Chief Prosecuting
Attorney, and Meagan D. Woodall, Assistant Prosecuting Attorney, for Plaintiff-
Appellant,
Raymond T. Faller, Hamilton County Public Defender, and David Hoffmann,
Assistant Public Defender, for Defendant-Appellee.
OHIO FIRST DISTRICT COURT OF APPEALS
MYERS, Presiding Judge.
{¶1} The state of Ohio appeals the judgments of the Hamilton County
Municipal Court granting defendant-appellee Immanuel Billings’s motion to
suppress. Because the trial court erred in granting the motion to suppress based on
grounds that were not raised in the motion and that were beyond the scope of the
motion as stipulated by Billings at the suppression hearing, and because the trial
court erred in concluding that there was no probable cause to arrest Billings, we
reverse.
I. Background Facts and Procedure
{¶2} Billings was charged with obstructing official business and resisting
arrest during a traffic stop where he was the passenger of a vehicle driven by his
mother. He filed a motion to suppress in which he asserted that police did not have
probable cause to arrest him for obstructing official business.
{¶3} At the hearing on the motion, defense counsel stipulated that his
motion was limited to the lack of probable cause to arrest:
THE COURT: Are there any stipulations or anything you want to put
on the record? What’s being disputed in terms of the stop and the
arrest? What - -
[DEFENSE COUNSEL]: No probable cause, your Honor.
THE COURT: No PC to arrest.
[DEFENSE COUNSEL]: Right.
The parties stipulated that Billings’s arrest was a warrantless arrest.
{¶4} The state presented the testimony of two police officers. Cincinnati
Police Officer Shermel Davis testified that he was riding with a ten-officer bike patrol
unit in downtown Cincinnati when an SUV driven by Billings’s mother, Tamika1
1 Fields’s first name is spelled “Tamika” and “Tomica” in the transcript of the motion hearing.
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OHIO FIRST DISTRICT COURT OF APPEALS
Fields, pulled up next to the officers, “has some words for us, speeds off, cuts in front
of us.”
{¶5} The officers pulled Fields over for an improper-passing traffic
violation. The officers requested that Fields roll the vehicle’s windows down, but she
refused and was “very uncooperative.” Officer Davis testified that there was “[a] lot
of yelling back and forth - - she’s yelling at me. Her son [Billings, a back-seat
passenger] is yelling at me [and] * * * the rest of the passengers in the back are
yelling.” Officer Davis said he asked Fields to roll the windows down because he was
unable to see who was in the back seat of the vehicle. Again, Fields refused to roll the
windows down.
{¶6} Cincinnati Police Officer Baron Osterman described the scene as
“chaotic.” He said that there were six or seven people inside the vehicle, and “there
was a lot of yelling going on from the inside [of] the vehicle, out towards us.”
According to Officer Osterman, “There was a lot of excessive movement, which we,
generally, don’t like as police officers. You can’t see where people are reaching,
where they’re moving to or if there’s weapons in the car.” Officer Osterman testified
that “the front passenger began to exit the vehicle, [and] a digital scale - - which is
commonly used as drug paraphernalia - - fell from the vehicle.”
{¶7} Officer Davis testified that Billings “stepped out [of the vehicle] before
I told him to step out,” so he told Billings “to sit back in the car,” and Billings
complied.
{¶8} Then Officer Davis ordered everyone out of the vehicle because “there
was a lot of commotion going on. In between [Fields’s] yelling in the front and
everybody in the back seat, it was a safety hazard.” According to Officer Osterman,
Billings complied with Officer Davis’s order to get out of the vehicle, but when Officer
Davis asked Billings to turn around and place his hands behind his back, Billings
refused and re-entered the vehicle. Officer Osterman stated, “If we ask somebody to
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OHIO FIRST DISTRICT COURT OF APPEALS
step out of the vehicle, and they don’t want to do it or they try to get back into the
vehicle,” officer safety becomes a concern because “they may be going back in for a
weapon or to retrieve some type of contraband.”
{¶9} The officers gave Billings several commands to get out of the vehicle,
but Billings refused. When the officers grabbed Billings to remove him from the
vehicle, Billings resisted by holding on to the interior of the vehicle.
{¶10} When the prosecutor asked Officer Osterman how Billings’s actions
impeded the performance of his duties as a law enforcement officer, defense counsel
objected, stating that “the [c]ourt just needs to determine whether or not there was
probable cause for him to make the arrest. That’s all we’re contesting here. There
was no probable cause.” After the trial court overruled the objection, Officer
Osterman stated, “Well, we have to deal with that specific situation instead of
continuing with the actual investigation, which was the initial traffic stop.” The
parties also introduced into evidence video from Officer Davis’s and a second
officer’s body-worn cameras.
{¶11} After the suppression hearing, the parties submitted written closing
arguments. In Billings’s written closing argument, he asserted for the first time that
the traffic stop was illegally prolonged and that the seizure violated R.C. 2935.07,
which requires police to inform a person arrested without a warrant of the officer’s
authority to do so and the cause of the arrest.
{¶12} The trial court granted Billings’s motion and suppressed the evidence
resulting from the arrest. In doing so, the court specifically considered the
arguments that Billings did not raise until after the suppression hearing. The court
assessed the traffic stop and concluded that the police had unreasonably and
unlawfully prolonged it. The court also found that police violated R.C. 2935.07 by
failing to inform Billings or his mother of the reason for the stop. In addition, the
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OHIO FIRST DISTRICT COURT OF APPEALS
court concluded that police had no probable cause to arrest Billings for obstructing
official business and that the resisting-arrest charge was unlawful.
II. The State Appeals
{¶13} The state now appeals. In a single assignment of error, the state
argues that the trial court erred by granting the motion to suppress because the court
improperly exceeded the scope of the motion in doing so and because the officers had
probable cause to arrest Billings. We agree.
{¶14} Appellate review of a motion to suppress presents a mixed question of
law and fact. State v. Burnside, 100 Ohio St.3d 152, 2003-Ohio-5372, 797 N.E.2d 71,
¶ 8. We must accept the trial court’s factual findings if they are supported by
competent, credible evidence, but we review de novo the trial court’s application of
the law to those facts. Id.A. The Trial Court Exceeded the Scope of the Motion to Suppress
{¶15} To suppress evidence obtained pursuant to a warrantless search or
seizure, the defendant must “raise the grounds upon which the validity of the search
or seizure is challenged in such a manner as to give the prosecutor notice of the basis
for the challenge.” Xenia v. Wallace, 37 Ohio St.3d 216, 219, 524 N.E.2d 889 (1988).
The prosecutor is not required to anticipate the specific legal and factual grounds for
a defendant’s challenge to a warrantless search or seizure. Id. at 218. The defendant
must clarify the legal and factual grounds upon which the defendant challenges the
evidence so that the prosecutor may adequately prepare for the suppression hearing.
Id.
{¶16} “By requiring the defendant to state with particularity the legal and
factual issues to be resolved, the prosecutor and court are placed on notice of those
issues to be heard and decided by the court and, by omission, those issues which are
otherwise being waived.” State v. Wintermeyer, 158 Ohio St.3d 513, 2019-Ohio-
5156, 145 N.E.3d 278, ¶ 18, quoting State v. Shindler, 70 Ohio St.3d 54, 58, 636
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OHIO FIRST DISTRICT COURT OF APPEALS
N.E.2d 319 (1994). “Similarly, when a defendant makes stipulations or narrows the
issues to be decided at a suppression hearing, the prosecution need not ‘prove the
validity of every aspect of the search.’ ” Id. at ¶ 19, quoting State v. Peagler, 76 Ohio
St.3d 496, 500, 668 N.E.2d 489 (1996). “Arguments not made by the defendant at
the suppression hearing are, therefore, deemed to have been waived.” Id.{¶17} A trial court commits reversible error by granting a motion to suppress
on a basis not raised by the defendant’s motion because the state is not provided with
an opportunity to adequately prepare arguments and present evidence on an issue
not raised by the defendant. State v. Skeens, 5th Dist. Tuscarawas No. 2017 AP 11
0030, 2018-Ohio-1610, ¶ 20; State v. Tyson, 2015-Ohio-3530, 41 N.E.3d 450, ¶ 32
(3d Dist); State v. Byrnes, 2d Dist. Montgomery No. 25860, 2014-Ohio-1274, ¶ 13-
14; State v. Duke, 9th Dist. Lorain No. 12CA010225, 2013-Ohio-743, ¶ 12.
{¶18} In this case, the only ground upon which Billings challenged the
validity of his warrantless arrest was whether probable cause existed to arrest him
for obstructing official business. At the beginning of the suppression hearing,
Billings stipulated that the sole ground for his motion was the lack of probable cause.
He reiterated this during the evidentiary hearing by clearly stating (in support of his
argument to keep out evidence) that all the defendant was contesting was that there
was no probable cause for the arrest. Billings raised no challenge relating to either
R.C. 2935.07 or the reasonableness of the traffic stop in his motion to suppress, but
the trial court granted the motion, at least in part, on both of those grounds. By
failing to raise the reasonableness of the stop or the application of R.C. 2935.07,
however, Billings waived those arguments. See Wintermeyer at ¶ 19. Because the
state was not afforded an opportunity to present evidence on the grounds not raised
by Billings in his motion to suppress, we hold that the trial court erred by granting
the motion on those grounds.
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OHIO FIRST DISTRICT COURT OF APPEALS
B. The Police Had Probable Cause to Arrest
{¶19} The only issue before the trial court was whether probable cause
existed to arrest Billings for obstructing official business. The test for establishing
probable cause to arrest is whether the facts and circumstances within the police
officer’s knowledge were sufficient to warrant a prudent individual in believing that
the defendant had committing or was committing an offense. State v. Deters, 128
Ohio App.3d 329, 333, 714 N.E.2d 972 (1st Dist.1998). A court must “examine the
events leading up to the arrest, and then decide ‘whether these historical facts,
viewed from the standpoint of an objectively reasonable police officer, amount to’
probable cause.” Maryland v. Pringle, 540 U.S. 366, 371, 124 S.Ct. 795, 157 L.Ed.2d
769 (2003), quoting Ornelas v. United States, 517 U.S. 690, 696, 116 S.Ct. 1657, 134
L.Ed.2d 911 (1996).
{¶20} Probable cause is a lesser standard of proof than that required for a
conviction because it requires only the probability of criminal activity, and not proof
beyond a reasonable doubt. State v. George, 45 Ohio St.3d 325, 329, 544 N.E.2d 640(1989); State v. Hackney, 1st Dist. Hamilton No. C-150375, 2016-Ohio-4609, ¶ 26.
Probable cause requires only the existence of circumstances that warrant suspicion.
George at 329; Hackney at ¶ 26. In other words, “it is clear that ‘only the
probability, and not a prima facie showing, of criminal activity is the standard of
probable cause.’ ” Illinois v. Gates, 462 U.S. 213, 235, 103 S.Ct. 2317, 76 L.Ed.2d 527(1983), quoting Spinelli v. United States, 393 U.S. 410, 419, 89 S.Ct. 584, 21 L.Ed.2d
637 (1969).
{¶21} Billings was charged with violating R.C. 2921.31(A), the obstructing-
official-business statute, which provides: “No person, without privilege to do so and
with purpose to prevent, obstruct, or delay the performance by a public official of any
authorized act within the public official’s official capacity, shall do any act that
hampers or impedes a public official in the performance of the public official’s lawful
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OHIO FIRST DISTRICT COURT OF APPEALS
duties.” A violation of the statute requires an affirmative act. State v. Wellman, 173
Ohio App.3d 494, 2007-Ohio-2953, 879 N.E.2d 215, ¶ 10 (1st Dist.).
{¶22} Here, the trial court found that there was no evidence that Billings
committed an affirmative act or that his failure to act impeded or hampered the
officers’ investigation of the traffic violation. However, the trial court focused only
on Billings’s refusal to get out of the vehicle. The testimony and video evidence at
the hearing demonstrated that Billings’s actions in impeding the officers’
investigation began before that. When Billings was still outside the vehicle, he
refused an officer’s order to turn around and place his hands behind his back. He
then re-entered the vehicle, and despite repeated commands, he refused to exit the
vehicle. In addition, he held on to the interior of the vehicle to prevent the officers
from pulling him out of the vehicle. Billings’s conduct required the officers to shift
their attention to him, thereby hampering the officers’ investigation of the traffic
stop of his mother and the other passenger’s possession of drug paraphernalia.
{¶23} The officers’ testimony was borne out by the video evidence. Billings’s
conduct in refusing an officer’s order to turn around and place his hands behind his
back, re-entering the vehicle that he had just vacated upon an officer’s order,
refusing the officers’ repeated commands to exit the vehicle, and holding the interior
of the vehicle to prevent himself from being pulled from the vehicle impeded the
officers’ investigation of the traffic stop. These facts, when considered as a whole,
would cause an objectively reasonable police officer to believe that Billings was
obstructing official business, and provided probable cause for his arrest.
{¶24} We hold that the trial court’s legal conclusion that the facts in this case
did not provide probable cause to arrest was in error. Because Billings’s arrest was
supported by probable cause, the trial court erred by granting his motion to
suppress.
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OHIO FIRST DISTRICT COURT OF APPEALS
III. Conclusion
{¶25} Therefore, we sustain the state’s assignment of error, reverse the trial
court’s judgments granting the motion to suppress, and remand the matter for
further proceedings consistent with law and this opinion.
Judgments reversed and cause remanded.
WINKLER and HENDON, JJ., concur.
SYLVIA SIEVE HENDON, retired, from the First Appellate District, sitting by assignment.
Please note:
The court has recorded its own entry this date.
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