State v. Anderson

• Decision Date: 25 January 1995
• Docket Number: No. 94,94
• Citation: 654 N.E.2d 1034,100 Ohio App.3d 688
• Parties: The STATE of Ohio, Appellee, v. ANDERSON, Appellant. CA 2036.
• Court: Ohio Court of Appeals

Page 688

100 Ohio App.3d 688

654 N.E.2d 1034

The STATE of Ohio, Appellee, v. ANDERSON, Appellant.

No. 94 CA 2036.

Court of Appeals of Ohio Fourth District, Ross County.

Decided Jan. 25, 1995.

Thomas M. Spetnagel, Chillicothe, for appellant.

Judith A. Heimerl, Chillicothe, for appellee.

GREY, Judge.

This is an appeal from a judgment of the Municipal Court of Chillicothe, Ohio. Anderson was charged with possession of drug paraphernalia and possession of marijuana. He filed a motion to suppress, which was denied. After his motion was denied, Anderson changed his plea to no contest. The charge of possession of drug paraphernalia was dismissed and he was found guilty of possession of marijuana. We reverse.

At approximately 4:00 p.m., on December 30, 1993, Trooper Staley of the Ohio Highway Patrol was on routine patrol on U.S. Route 33 in Ross County. Staley was working as part of a two-man, two-car force designed to aggressively pursue minor traffic violations in the hopes of making a drug arrest, i.e., part of a drug interdiction program. In the patrol car with Staley was a dog, trained to sniff out substances of abuse. Trooper Staley noticed a car with tinted windows driven by Anderson and, since he suspected that the tint was darker than that permitted by law, he pulled the vehicle over. The dog remained in the patrol car and Staley and the other officer approached Anderson's vehicle.

When asked about the tint, Anderson said he recently received a citation for excessive window tint and hadn't had sufficient time to remove the tint or pay the fine. Staley decided to issue a warning ticket rather than a uniform traffic citation. After issuing the ticket, Staley asked Anderson if he had any drugs, weapons or drug paraphernalia in the car. Anderson admitted he had some wrapping papers, a pipe and a little marijuana. He was arrested for violating R.C. 2925.11(C)(3), possession of marijuana, and R.C. 2925.14, possession of drug paraphernalia.

On January 12, 1994, Anderson waived his speedy trial rights. On May 5, 1994, he filed a motion to suppress. The hearing was held on May 16, 1994. At the conclusion of the hearing, his motion was denied. Anderson changed his plea to no contest and the charge of possession of drug paraphernalia was dismissed. He was found guilty of possession of marijuana. Anderson timely filed a notice of appeal and assigns the following error.

"The trial court erred in overruling appellant's motion to suppress."

Anderson advances three arguments to support his assignment of error. First he says, after the warning ticket was issued, further detention was a violation of his Fourth Amendment Rights. Next, he says Trooper Staley had no reasonable articulable suspicion that any further criminal activity was afoot. He concludes by arguing that, even if his detention was proper, his consent to search was not voluntarily given.

We begin by noting that appellant appears to have merged App.R. 16(A)(3) and 16(A)(7). App.R. 16(A)(3) requires separate assignments of error, while App.R. 16(A)(7) specifies that each assignment of error is to be followed by a separate argument. In the interest of justice we view Anderson's appeal as a challenge to the propriety of the questioning initiated by Trooper Staley and the extended detention necessary to complete that questioning.

The state argues that merely asking a motorist, who has been stopped for a minor traffic violation, whether there is any contraband in the vehicle is innocuous, carries no Fourth Amendment implications and is not overly intrusive. Implicit in this argument is that, since Anderson was free to leave, Miranda warnings were unnecessary.

In reviewing a motion to suppress, we accept the trial court's findings of fact and rely on its ability to evaluate the credibility of the witnesses. State v. Clay (1973), 34 Ohio St.2d 250, 63 O.O.2d 391, 298 N.E.2d 137. We then independently determine, without deference to the trial court, whether the court has applied the appropriate legal standard. State v. Simmons (Aug. 30, 1990), Washington App. No. 89CA18, unreported, 1990 WL 127065.

In Delaware v. Prouse (1979), 440 U.S. 648, 663, 99 S.Ct. 1391, 1401, 59 L.Ed.2d 660, 673-674, the Supreme Court of the United States held that random stops of motor vehicles are violative of Fourth Amendment protection unless there is at least a reasonable and articulable suspicion that a motorist is unlicensed or that an automobile is not registered, or that either the vehicle or an occupant is otherwise subject to seizure for violation of law. In Ohio, an investigatory stop of a motor vehicle is permissible when specific articulable facts exist to justify a reasonable suspicion that the driver violated the law. State v. Chatton (1984), 11 Ohio St.3d 59, 11 OBR 250, 463 N.E.2d 1237.

Pursuant to Terry v. Ohio (1968), 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889, an officer may briefly detain an individual while he investigates the suspicious behavior which gave rise to the stop. A detention conducted according to Terry standards requires a reasonable and articulable suspicion of criminal activity. United States v. Sharpe (1985), 470 U.S. 675, 105 S.Ct. 1568, 84 L.Ed.2d 605. The articulable and reasonable suspicion must exist in the officer's mind at the time of the stop and cannot be based on facts obtained after the initial stop. State v. Freeman (1980), 64 Ohio St.2d 291, 18 O.O.3d 472, 414 N.E.2d 1044. See, also, Prouse, supra; State v. Brandenburg (1987), 41 Ohio App.3d 109, 534 N.E.2d 906; State v. Heinrichs (1988), 46 Ohio App.3d 63, 545 N.E.2d 1304; Chatton, supra.

When a reviewing court determines whether the stop was proper, it must consider the totality of the circumstances. Freeman, supra, at syllabus. See, also, State v. McCaig (1988), 51 Ohio App.3d 94, 554 N.E.2d 925. An investigatory stop must be justified by some objective manifestation that the person stopped is engaged or about to engage in some form of criminal activity. United States v. Cortez (1981), 449 U.S. 411, 417, 101 S.Ct. 690, 694-695, 66 L.Ed.2d 621, 628-629. Furthermore a brief stop of a suspicious individual to determine his identity or to maintain the status quo may be most reasonable in light of the facts known to the officer at the time. State v. Williams (1990), 51 Ohio St.3d 58, 60, 554 N.E.2d 108, 110-111, citing Terry, supra. These circumstances are to be viewed through the eyes of the reasonable and prudent police officer on the scene, who must react to events as they unfold. State v. Andrews (1991), 57 Ohio St.3d 86, 87, 565 N.E.2d 1271, 1272-1273, citing United States v. Hall (C.A.D.C.1976), 525 F.2d 857, 859. Hence, the test is objective in nature, i.e., "[w]ould the facts available to the officer at the moment of the seizure or the search 'warrant a man of reasonable caution in the belief' that the action taken was appropriate?" State v. Bobo (1988), 37 Ohio St.3d 177, 178-179, 524 N.E.2d 489, 491.

The record shows Staley stopped Anderson because he believed the window tint on Anderson's car surpassed that allowable by law. The trial court found, and we agree, that Trooper Staley had a reasonable articulable suspicion to warrant an investigatory stop. The question thus becomes whether, after Staley's suspicions regarding excessive window tint were confirmed, there was a reasonable articulable suspicion to warrant further investigation into unrelated matters.

We begin by noting that the facts here are unlike the typical minor traffic stop which leads to the more serious drunk driving arrest. In the majority of those cases, the officer forms a reasonable articulable suspicion to support investigation of drunk driving because he detects an odor of alcohol, he sees bloodshot eyes and he hears slurred speech. A question of whether the driver, in such an instance, has been drinking is most reasonable in light of the concomitant conditions. Here, absent the answer to Staley's question regarding contraband, there is no reasonable articulable suspicion that further criminal activity was afoot. These minor traffic stops with accompanying questions which, under any other condition, would carry Fourth Amendment implications, appear as little more than a subterfuge to bypass the rules of search and seizure.

In State v. Smotherman (July 29, 1994), Wood App. No. 93WD082, unreported, 1994 WL 395128, the Sixth District followed the rationale of State v. Retherford (1994), 93 Ohio App.3d 586, 639 N.E.2d 498. In Smotherman, the defendant was stopped for speeding and for having a defective bumper. The trooper asked whether there were any guns or drugs in the vehicle and Smotherman replied "no." After handing Smotherman the traffic citation and telling him he was free to leave, the officer asked if he could search the vehicle. He did not tell Smotherman that he was free to refuse the request. The search turned up two partially smoked marijuana joints and a stem. Smotherman was charged with possession of drug paraphernalia and drug abuse. His motion to suppress was denied and he was found guilty. In reversing the denial of the motion to suppress, the Sixth District stated:

"It has come to this court's attention that the patterns and practices of the officer in the case sub judice and officers in other Ohio cases are strikingly similar. The patterns and practices are so strikingly similar that it appears that these officers are following a 'script' in regard to seeking consent to search...