City of Xenia v. Wallace

• Citation: 524 N.E.2d 889,37 Ohio St.3d 216
• Decision Date: 22 June 1988
• Docket Number: No. 87-571,87-571
• Parties: CITY OF XENIA, Appellant, v. WALLACE, Appellee.
• Court: United States State Supreme Court of Ohio

Page 216

37 Ohio St.3d 216

524 N.E.2d 889

CITY OF XENIA, Appellant, v. WALLACE, Appellee.

No. 87-571.

Supreme Court of Ohio.

Submitted April 12, 1988.

Decided June 22, 1988.

Syllabus by the Court

1. To suppress evidence obtained pursuant to a warrantless search or seizure, the defendant must (1) demonstrate the lack of a warrant, and (2) 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.

2. Once a defendant has demonstrated a warrantless search or seizure and adequately clarified that the ground upon which he challenges its legality is lack of probable cause, the prosecutor bears the burden of proof, including the burden of going forward with evidence, on the issue of whether probable cause existed for the search or seizure.

Defendant-appellee, LaMar E. Wallace, was driving his car in the city of Xenia, Ohio, in the early morning of February 2, 1986, when he was stopped for speeding by Patrolman Daniel Savage. According to the arrest report attached to the traffic citation, Wallace had a strong odor of alcohol on his person and failed a field sobriety test. Wallace was asked to submit to a BAC verifier breath test, which resulted in a reading of .124.

Wallace was charged with operating a motor vehicle with a concentration of ten hundredths of one gram or more by weight of alcohol per two hundred ten liters of breath in violation of Xenia Revised Code Section 333.01(A)(3). ¹ Wallace moved to suppress evidence relating to any chemical testing on the grounds that the test was illegally obtained and was not performed in accordance with the procedures prescribed by the state of Ohio.

At a hearing on the motion, Wallace subpoenaed Officer Savage and Officer David Helling. Defense counsel questioned the officers as to the circumstances surrounding the initial stop of Wallace. Other than the speed and noise of Wallace's car, the officers did not testify that they noticed anything unusual or erratic about Wallace's driving. The prosecutor waived his opportunity to cross-examine and did not present testimony or other evidence at the hearing. As a result, the events recorded in the arrest report--strong odor of alcohol and failed sobriety test--were not put into evidence at the hearing.

During closing arguments at the hearing, defense counsel argued that "from the Officer's own testimony there was no probable cause to have Mr. Wallace submit to a breath test." The prosecutor did not respond and turned down the court's offer of time in which to file a memorandum. The court then denied the motion to suppress.

Wallace entered a no contest plea and was found guilty. Upon appeal, the court of appeals reversed the denial of the motion to suppress. The court held that, once the defendant demonstrates that the search was conducted without a warrant, the state must go forward and prove by a preponderance of the evidence that the search was conducted in compliance with the Fourth and Fourteenth Amendments to the United States Constitution. The court further held that in the absence of evidence of probable cause to administer the breathalyzer test, the state failed to meet its burden.

The court of appeals, finding its judgment to be in conflict with the judgment of the court of appeals in State v. Banks (Jan. 20, 1980), Hamilton App. No. C-790217, unreported, certified the record of the case to this court for review and final determination.

Mark J. Donatelli, Pros. Atty., for appellant.

Alex V. DeMarco, Vandalia, for appellee.

HERBERT R. BROWN, Justice.

The conflict between the appellate courts centers around which party has the burden of going forward with evidence to show probable cause, or lack thereof, for the administration of a breathalyzer test. We hold that the state has the burden of going forward with evidence to show probable cause once the defendant has demonstrated a warrantless search or seizure and has raised lack of probable cause as a ground for attacking the legality of the search or seizure.

I

The burden of initially establishing whether a search or seizure was authorized by a warrant is on the party challenging the legality of the search or seizure. See United States v. De La Fuente (C.A. 5, 1977), 548 F.2d 528; People v. Jansen (Colo.1986), 713 P.2d 907, 911; State v. Franklin (La.1978), 353 So.2d 1315. Once a warrantless search is established, the burden of persuasion is on the state to show the validity of the search. State v. Kessler (1978), 53 Ohio St.2d 204, 207, 7 O.O.3d 375, 377, 373 N.E.2d 1252, 1255. ² This flows from the presumption that searches conducted outside the judicial process, 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." Coolidge v. New Hampshire (1971), 403 U.S. 443, 454-455, 91 S.Ct. 2022, 2031-2032, 29 L.Ed.2d 564; Katz v. United States (1967), 389 U.S. 347, 357, 88 S.Ct. 507, 514, 19 L.Ed.2d 576.

However, the prosecutor cannot be expected to anticipate the specific legal and factual grounds upon which the defendant challenges the legality of a warrantless search.

The prosecutor must know the grounds of the challenge in order to prepare his case, and the court must know the grounds of the challenge in order to rule on evidentiary issues at the hearing and properly dispose of the merits. State v. Johnson (1974), 16 Ore.App. 560, 567-570, 519 P.2d 1053, 1057. Therefore, the defendant must make clear the grounds upon which he challenges the submission of evidence pursuant to a warrantless search or seizure. Id. United States v. Culotta (C.A. 2, 1969), 413 F.2d 1343, 1345; Duddles v. United States (D.C.App.1979), 399 A.2d 59, 61-62. Failure on the part of the defendant to adequately raise the basis of his challenge constitutes a waiver of that issue on appeal. State v. Carter (Utah 1985), 707 P.2d 656; see, also, United States v. Di Stefano (C.A. 2, 1977), 555 F.2d 1094; United States v. Arboleda (C.A. 2 1980), 633 F.2d 985; United States v. Hensel (C.A. 1, 1983), 699 F.2d 18, 41; State v. Kremer (1976), 307 Minn. 309, 239 N.W.2d 476; People v. Lyles (1985), 106 Ill.2d 373, 87 Ill.Dec. 934, 478 N.E.2d 291.

Moreover, Crim.R. 47 provides in part:

"An application to the court for an order shall be by motion. A motion, other than one made during trial or hearing, shall be in writing unless the court permits it to be made orally. It shall state with particularity the grounds upon which it is made and shall set forth the relief or order sought. It shall be supported by a memorandum containing citations of authority, and may also be supported by an affidavit."

This provision, in the context of the ruling case law and when applied to a motion to suppress evidence obtained by search and seizure, requires that the prosecution be given notice of the specific legal and factual grounds upon which the validity of the search and seizure is challenged.

Therefore, we hold that, to suppress evidence obtained pursuant to a warrantless search or seizure, the defendant must (1) demonstrate the lack of a warrant, and (2) 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.

II

Once a defendant establishes a warrantless search or seizure and clarifies the grounds on which its legality is challenged, the issue arises as to which party has the burden of going forward with evidence showing probable cause or lack thereof. "Burden of proof" encompasses two aspects: the burden of going forward with evidence (or burden of production) and the burden of persuasion. State v. Robinson (1976), 47 Ohio St.2d 103, 107, 1 O.O.3d 61, 63, 351 N.E.2d 88, 91-92. It is the first of these burdens which we address.

The Court of Appeals for Hamilton County, without stating its reasoning, placed the burden of going forward with evidence of whether probable cause existed for a warrantless search on the defendant. ³ See State v. Banks (Jan. 20, 1980), Hamilton App. No. C-790217, unreported; State v. Halko (July 16, 1986), Hamilton App. No. C-850656, unreported; State v. Kalejs (Jan. 8, 1986), Hamilton App. No. C-850272, unreported. The court of appeals below placed the burden on the prosecutor, but likewise failed to state its reasoning.

There are at least three arguments for putting the burden of production on the state on the issue of whether there existed probable cause for a search or seizure: (1) a party charged from the outset with the burden of persuasion with respect to a particular issue ordinarily has the subsidiary burden of going forward with evidence regarding such issue, State v. Rand (Me.1981), 430 A.2d 808, 818; (2) the state has primary access to persons with the relevant information (i.e., the law enforcement officers); and (3) it is less burdensome for a party to produce evidence on the existence of probable cause than the lack of probable cause. See, generally, 4 LaFave, Search and Seizure (1987) 227-228, Section 11.2(b). On the other hand, the reasons for placing the burden of production on the defendant include: (1) the presumption of regularity of the actions of law enforcement officials, see LaFave, supra, at 219; (2) the usual requirement that the moving party go forward with evidence in support of his...