State v. Anez

• Decision Date: 16 June 2000
• Docket Number: No. 99-167-CR.,99-167-CR.
• Citation: 108 Ohio Misc.2d 18,738 NE 2d 491
• Parties: The STATE of Ohio v. ANEZ.
• Court: Ohio Court of Common Pleas

108 Ohio Misc.2d 18

738 NE 2d 491

The STATE of Ohio v. ANEZ.¹

No. 99-167-CR.

Court of Common Pleas of Ohio, Hancock County.

Decided June 16, 2000.

Robert A. Fry, Hancock County Prosecuting Attorney, and Mark C. Miller, Assistant Prosecuting Attorney, for the state.

Thomas D. Drake, for defendant.

REGINALD J. ROUTSON, Judge.

Procedural History

This matter came on for consideration by the court pursuant to a motion to suppress, or, in the alternative, motion in limine, filed by the defendant on January 4, 2000. In response thereto, the state of Ohio filed a memorandum in opposition to the defendant's motion to suppress on February 1, 2000. The matter came on for an evidentiary hearing on March 15, 2000, and again on April 13, 2000. At the conclusion of the April 13, 2000 hearing, the court afforded both parties until April 28, 2000 to file supplemental memoranda. Neither party did so. Based upon the materials supplied by the parties, and the testimony adduced at both hearings, the court finds as follows.

Operative Facts

On September 25, 1999, at approximately 3:00 a.m., Ohio State Highway Patrol Officer Christopher Martin Brock was operating his cruiser eastbound on State Route 12 near the village of Arcadia, Ohio. Seated next to Trooper Brock was Trooper A.K. Leitenberger, who was supervising Brock since the latter was still in training. The attention of both troopers was drawn to a vehicle traveling directly in front of their cruiser. This vehicle, identified as a green Saturn, drifted left of the center line and quickly drifted over the right edge line twice. According to Brock, the vehicle traveled completely off the roadway to the right before coming back into its lane of travel. Based upon these observations, Trooper Brock activated his pursuit lights and brought the vehicle to a stop. Trooper Brock testified that he could see two individuals in the vehicle. Trooper Brock exited his vehicle and made an approach to the vehicle on the passenger side to inquire of the driver. Trooper Leitenberger remained in or near the cruiser but continued to observe the situation, to assist if necessary. As Trooper Brock spoke with the operator of the vehicle, later identified as the defendant, Casimiro Anez III, he noticed a strong odor of alcoholic beverage coming from inside the car. He asked the driver if he had been drinking and received a positive response. Trooper Brock also noted that the driver's eyes were "kind of red, kind of glassy" and that his speech was slightly slurred. Trooper Brock asked the driver to step from the vehicle to perform some field sobriety tests. The driver agreed, and, after he exited the vehicle, Trooper Brock noted a strong odor of alcohol coming from the defendant as they continued to converse. Trooper Brock performed the horizontal gaze nystagmus test on the defendant and obtained six clues from six separate branches of the test, suggesting a strong probability that the defendant was operating his vehicle under the influence of alcohol. Trooper Brock's cruiser was equipped with a videotape machine. The video portion of the taping machine was operational on the night in question; however, due to mechanical difficulties, the audio portion of the taping machine was not in working order. As part of the evidence, the state introduced the videotape of these events. A further review of the videotape indicates that Trooper Brock performed a vertical gaze nystagmus test on the defendant noting additional signs of intoxication.

After completion of the horizontal and vertical gaze nystagmus tests, Brock asked the defendant to perform the walk-and-turn test and the one-leg, standdivided-attention-skills test. Upon completion of these tests, Trooper Brock concluded that the defendant performed poorly. Finally, the defendant submitted to a portable breath test administered by Trooper Leitenberger, with a result of O.12, or approximately twenty percent over the lawful limit for a sample of breath.

Utilizing this information, Trooper Brock concluded that the defendant was under the influence of alcohol and arrested him for the operation of a vehicle while under the influence of alcohol. He testified that at approximately 3:16 a.m. he informed the defendant of his constitutional rights, handcuffed him, and placed him into the back of the cruiser.

At some point during the arrest process, Trooper Leitenberger answered a dispatch from the Ohio State Highway Patrol indicating that the vehicle they had stopped was the same vehicle mentioned in a previous bulletin or "bolo" (be on the lookout). This vehicle reportedly was involved in an incident near Brandy's nightclub in Findlay, Ohio, where the driver and/or the occupants of this vehicle had brandished weapons. Some of this same information had been broadcast earlier to Brock and Leitenberger, but they testified that they had failed to make the connection until the later dispatch.

Although Trooper Brock had pulled the defendant's vehicle off to the side of the road and locked it at the defendant's request, due to the new information, he returned to the vehicle to search it for weapons at the direction of his coach. A search of the internal compartments of the vehicle uncovered a loaded 9 mm handgun and drug paraphernalia located under the driver's seat. A search of the trunk unveiled an AR-15 rifle, magazines, and ammunition.

The state also adduced information from Findlay City Police Officer Matthew Tuttle. Officer Tuttle explained that on the night in question, three individuals came to the station at approximately 2:20 a.m. to report an incident near Brandy's nightclub. The main complainant, Linda Oswald, explained that a pistol and rifle had been pointed at her and the occupants of her vehicle on Adams Street in the city of Findlay. Oswald explained that she had been at Brandy's nightclub in the evening and that an argument broke out between her friends and a group of Hispanic males. The group left Brandy's, but according to Oswald, the Hispanic males indicated that they would return to "finish the job." Oswald explained that they entered a green Saturn vehicle, which she decided to follow. While in pursuit of the green Saturn, she told Officer Tuttle that the occupants of the vehicle pointed weapons at her and her passengers. Oswald gave Tuttle her name, address, and the license plate number of the green Saturn. Officer Tuttle ran a check on the license plate, which came back to a 1995 Saturn registered to Casimiro Anez, later identified as the defendant. Her story was supported by two other witnesses, her daughter, Kimberly Oswald, and a friend, Rachel Grey. Officer Tuttle provided this information to the Findlay Police Department dispatch office so it could be distributed to all law enforcement agencies in the area. Officer Tuttle explained that he had no reason to doubt the testimony of Oswald and had no prior contact with her. This information as gleaned by Officer Tuttle served as the basis for the police dispatch that Trooper Brock used to support his search of the defendant's vehicle on State Route 12.

Defendant now challenges the stop of his motor vehicle, his arrest for the operation of the vehicle while under the influence of alcohol, and the warrantless search of his vehicle. In response, the state of Ohio contends that the actions of Troopers Brock and Leitenberger were reasonable under the circumstances, that Trooper Brock possessed a reasonable and articulable suspicion to stop the defendant's motor vehicle, that there was probable cause to arrest the defendant for the operation of a motor vehicle while under the influence of alcohol, and that there was probable cause or other justification to search the internal compartments of the vehicle and the trunk.

The defendant was charged with carrying a concealed weapon, as proscribed by R.C. 2923.12.

The court will address each of these issues individually.

Burdens of Production and Persuasion

A defendant bears the initial burden of providing the state with adequate notice of grounds for challenging a warrantless search or seizure. In Ohio, it is incumbent upon a party seeking to suppress evidence to file a timely motion to suppress in accordance with Crim.R. 12 and 47. Thereafter, the state bears the burden of producing evidence on the issues raised and persuading the court by a preponderance of the evidence that the officer's actions were justified and that the search or seizure was lawful. See Xenia v. Wallace (1988), 37 Ohio St.3d 216, 524 N.E.2d 889; Bourjaily v. United States (1987), 483 U.S. 171, 107 S.Ct. 2775, 97 L.Ed.2d 144.

Reasonable Grounds to Stop

The cornerstone of the Fourth Amendment is the right of the people to be free from unreasonable seizures and searches. Terry v. Ohio (1968), 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889. Stopping an automobile and detaining its occupants constitutes a "seizure" within the meaning of the Fourth Amendment, even when the purpose of the stop is limited to a traffic violation and the resulting detention is brief. To justify an investigatory detention, based upon an observation of a traffic violation, a police officer must establish the existence of specific and articulable facts. These facts, in conjunction with the rational inferences therefrom, must, in light of the totality of the circumstances, justify a reasonable suspicion that the person who was stopped was involved in illegal activity, including the violation of traffic offenses. See Delaware v. Prouse (1979), 440 U.S. 648, 99 S.Ct. 1391, 59 L.Ed.2d 660. See, also, State v. Rusnak (1997), 120 Ohio App.3d 24, 696 N.E.2d 633; State v. Wireman (1993), 86 Ohio App.3d 451, 621 N.E.2d 542.

The constituents of reasonable and articulable suspicion cannot be precisely defined. This determination encompasses examination of all the facts, observations, and knowledge of circumstances in possession of the officer at the time of the stop. Generally, the observation of one...