State v. Ballenger

• Decision Date: 30 June 2022
• Docket Number: Case No. S-2021-835
• Citation: 514 P.3d 478
• Parties: STATE of Oklahoma, Appellant v. Clay A. BALLENGER, Appellee
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

514 P.3d 478

STATE of Oklahoma, Appellant

v.Clay A. BALLENGER, Appellee

Case No. S-2021-835

Court of Criminal Appeals of Oklahoma.

FILED June 30, 2022

APPEARANCES AT HEARING

KEVIN KELLER, ASSISTANT DISTRICT ATTORNEY, TULSA COUNTY COURTHOUSE, 500 S. DENVER AVE., STE. 900, TULSA, OK 74103-3838, COUNSEL FOR THE STATE

JASON EDGE, EDGE LAW FIRM, P.C., 15 WEST 6TH ST., STE. 2304, TULSA, OK 74119, COUNSEL FOR DEFENDANT

APPEARANCES ON APPEAL

KEVIN KELLER, ASSISTANT DISTRICT ATTORNEY, TULSA COUNTY COURTHOUSE, 500 S. DENVER AVE., STE. 900, TULSA, OK 74103-3838, COUNSEL FOR APPELLANT

JASON EDGE, BRIAN K. MORTON, EDGE LAW FIRM, P.C., 15 WEST 6TH ST., STE. 2304, TULSA, OK 74119, COUNSEL FOR APPELLEE

OPINION

HUDSON, VICE PRESIDING JUDGE:

¶1 On May 11, 2021, Appellee, Clay A. Ballenger, was charged with misdemeanor Driving Under the Influence of Alcohol, in violation of 47 O.S.Supp.2018, § 11-902, in Tulsa County District Court, Case No. CM-2021-1695. On June 27, 2021, Ballenger filed a Motion to Suppress Evidence and Brief in Support challenging, inter alia, the legality of his warrantless arrest. A hearing on Ballenger's motion was held on July 23, 2021. After hearing testimony from multiple witnesses and argument from both parties, the Honorable J. Anthony Miller, Special Judge, took the matter under advisement. On August 2, 2021, Judge Miller sustained Ballenger's motion finding that Ballenger's warrantless arrest violated 22 O.S.Supp.2014, § 196 and suppressed all evidence flowing from the arrest.

¶2 Appellant, the State of Oklahoma, now appeals. We exercise jurisdiction pursuant to 22 O.S.2021, § 1053(5). For the reasons discussed below, we reverse the district court's ruling and remand for further proceedings consistent with this opinion.

BACKGROUND

¶3 The State presented five witnesses at the hearing on Ballenger's motion to suppress. What follows is a summary of the State's evidence relating to the events surrounding Ballenger's arrest.

¶4 On August 27, 2020, around 9:30 p.m., Andrew Peters and Damiana Haynes, both seventeen years old, were driving in the area of 101st and Yale in Tulsa when they observed a maroon F-150 truck run a red light while making an illegal left turn in a construction zone. After passing through the intersection, the couple's vehicle ended up behind the truck. The driver of the truck was later identified as Clay Ballenger, an off-duty Tulsa police officer.

¶5 Peters and Haynes observed Ballenger's truck repeatedly drive off the road "toward the trees" and into the grass. Peters would honk and the truck would return to "the correct lane" and then "go into the opposing [oncoming traffic] lane" and Peters would honk again. "Because the truck was swerving on and off the road[,]" the couple continued following the truck for a "couple miles" and into Ballenger's neighborhood. Ballenger ultimately pulled his truck into his driveway where his Tulsa police car was parked, striking the back bumper of the police car with his truck. Shortly thereafter, Ballenger opened the driver's side door, hung his leg out the door, and then went still.

¶6 Although the collision "wasn't that bad[,]" Haynes called 911 and reported what she and Peters had witnessed. Collectively, Haynes and Peters told the 911 operator, inter alia , that they had observed the truck run a red light, swerve all over the road, pull into a driveway and "straight up ram[ ] the cop car" that was parked in the driveway. Haynes explained that they had followed the truck to make sure the driver got home safely. She further described for the 911 operator how the driver was just sitting in his vehicle with his door partially opened and appeared to be passed out. From information provided by Haynes and Peters, the 911 operator quickly identified Lieutenant Ballenger as the driver of the truck and officers were dispatched to the scene. Haynes and Peters remained at the scene and spoke with the police when they arrived a short time later.

¶7 Tulsa Police Lieutenant Christopher Moudy was the first officer to arrive at the scene. Moudy made contact with the couple and obtained more details about what they observed. He then waited for Tulsa Police Captain Richard Meulenberg to arrive at the scene. Captain Meulenberg, the only shift commander working that night, was specifically called because the incident involved a Tulsa police officer. Meulenberg arrived around 10:00 p.m. and was briefed by Lt. Moudy. Afterward, Meulenberg approached the driver's side door of Ballenger's truck. Lieutenant Moudy served as his "backer" and stood approximately ten yards behind Meulenberg while he confronted Ballenger in his truck. Ballenger's truck door was "slightly open[ed]" and the vehicle was not running. Meulenberg shined his flashlight inside the vehicle and opened the door a bit more. Meulenberg and Moudy each recognized Ballenger sitting in the driver's seat. Ballenger was unconscious and there was no key in the ignition. Meulenberg shook Ballenger to wake him up. Ballenger smelled of alcohol and his speech was slow. It also took Ballenger "a little longer to answer questions."

¶8 Notably, Captain Meulenberg and Lieutenant Ballenger had known each other, both casually and professionally, for many years. Meulenberg was thus familiar with Ballenger's "manner of speech and the way he normally seems[.]" He had also observed Ballenger in the past when he was under the influence of alcohol. Based on his initial observations of Ballenger in his truck that night, Ballenger "appeared to be either under the influence [of alcohol] or ... severely fatigued." However, after Meulenberg had the opportunity to further interact with Ballenger and observe his "behaviors, mannerisms, [ ] speech, [and] odor[,]" Meulenberg ruled out fatigue as the cause of Ballenger's questionable behavior. When Ballenger exited his truck, he was unsteady on his feet and Meulenberg had to help steady him. Further, Ballenger displayed a "longer gap of understanding" as Meulenberg spoke with him outside of his truck, and his responses to questions were notably delayed.

¶9 Tulsa Police Officer Jimmy Jones was called to the scene to assist due to his experience with DUIs. When he arrived, Ballenger was outside of his truck with Captain Meulenberg and Lieutenant Moudy. Like Meulenberg and Moudy, Jones recognized Ballenger when he saw him. Jones was wearing a face mask that covered his mouth and nostrils when he approached and made face-to-face contact with Ballenger. Despite his mask, Jones smelled an odor of alcohol coming from Ballenger. Jones further noted that Ballenger would "shut his eyes for at least ten seconds, and then he would open them slowly back up." When he did so, he would start to sway. Based on his training and experience, Jones found this significant, explaining that it is typical for intoxicated individuals to "lose their bearings of space" when they close their eyes, and "start to sway to try to gain balance."

¶10 All three officers at the scene observed that the front bumper of Ballenger's truck was touching the back bumper of his squad car. Lieutenant Moudy found Ballenger's keys under the driver's seat of his truck and moved the truck back a foot to see if there was any damage to either vehicle. No damage was observed. Moudy did not smell the odor of alcohol in Ballenger's vehicle when he retrieved the keys.

¶11 At Captain Meulenberg's direction, Officer Jones read Ballenger the Oklahoma Implied Consent Law from the standard form used by the Tulsa Police Department. As he did so, Ballenger just stared at Jones as if he was looking through him. Meulenberg described Ballenger's demeanor as follows:

[Ballenger] seemed to be ... listening, but he seemed a bit confused about the questioning. ... [H]e didn't answer the question. ... [H]e asked for no clarification but didn't answer the question.

So we engaged in a elongated, you know, back-and-forth where I had asked him to answer the question because I could not answer the question for him.

* * *

I asked several times, and [ ] he didn't make any statement. ... [H]e had physical cues, that he seemed like he was hearing what I was saying. And then I told him a final time, I said, if you don't answer this question I'm going to take that as a refusal, and we are going to proceed.

(Tr. 46). Failing to respond, Ballenger was placed under arrest and transported to the Tulsa County jail by Meulenberg.

¶12 The State admitted seven exhibits into evidence, without objection—the 911 call; a photo of Haynes and Peters outside Ballenger's house talking with Lieutenant Moudy; a photo of Ballenger's truck and squad car parked in his driveway; Ballenger's mugshot; and the body camera footage of each officer's interactions with Ballenger that night.

¶13 Ballenger did not call any witnesses at the motion hearing, but admitted into evidence an internet printout purportedly containing the National Highway Traffic Safety Administration's definition of "accident."

¶14 Based on the evidence presented at the hearing and argument from counsel, the trial court ultimately found Ballenger's warrantless arrest violated 22 O.S.Supp.2014, § 196 and suppressed all evidence flowing from his arrest. In doing so, the trial court rejected the State's contention that Ballenger's arrest was lawful because he committed the crime of Actual Physical Control (APC), in violation of 47 O.S.Supp.2018. § 11-902(A), in the presence of the officers. See 22 O.S.Supp.2014, § 196(1) ("A peace officer may, without warrant, arrest a person ... [f]or a public offense, committed or attempted in the officer's presence."). The court found that Ballenger's conduct fell short of APC because "when the officers arrived ..., [Ballenger] was in his parked truck in his driveway with the engine turned off. He was not driving." Citing Shirey v. State , 1957 OK CR 100, 321 P.2d 981, Judge Miller determined that the only evidence police had to support Ballenger's arrest was information from a third party. The court further...