State v. Kevin L. Smith
| Decision Date | 14 January 2000 |
| Docket Number | 00-LW-0072,C.A. 17475,17477,17476 |
| Parties | STATE OF OHIO, Plaintiff-Appellant v. KEVIN L. SMITH, Defendant-Appellee STATE OF OHIO, Plaintiff-Appellant v. MAGUS D. ORR, Defendant-Appellee STATE OF OHIO, Plaintiff-Appellant v. ANDRE L. SMITH, Defendant-Appellee C.A. CASE NO. 17475, 17476, 17477 |
| Court | Ohio Court of Appeals |
JOHN J SCACCIA, Atty. Reg. No. 0022217, 335 W. Third Street, Room 372, Dayton, Ohio 45402, Attorney for Plaintiff-Appellant
CARL G GORALESKI, Atty. Reg. No. 0024351, Assistant Public Defender 301 W. Third Street, Dayton, Ohio 45422, Attorney for Defendants-Appellees
RICHARD HEMPFLING, Atty. Reg. No. 0029986, 318 West Fourth Street, Dayton, Ohio 45402, Attorney for Amicus Curiae, American Civil Liberties Union of Ohio Foundation
W. ANDREW HASSELBACH, Atty. Reg. No. 0051803 12 E. Warren Street, Lebanon, Ohio 45036, Attorney for Amicus Curiae, Ohio Association for Criminal Defense Lawyers
Pursuant to Crim.R. 12(J), the State of Ohio appeals the Dayton municipal court's decision suppressing evidence obtained at a driver's license checkpoint conducted by the Dayton Police Department in June of 1998. The State claims the municipal court erroneously concluded that the checkpoint was an unreasonable search and seizure in violation of the United States and Ohio Constitutions.
On June 16, 1998, Defendant-Appellee Magus Orr encountered a driver's license checkpoint conducted by the Dayton Police Department in the vicinity of Hoover and Brooklyn Avenues in Dayton. Orr was subsequently cited for driving without being properly licensed in violation of R.C §4507.02(A)(1).
Defendant-Appellee Andre Smith (hereinafter "Andre") was stopped at a driver's license checkpoint conducted by the Dayton Police Department on June 17, 1998, near Lakeview and Adelite Avenues in Dayton. Andre was cited for driving without being properly licensed in violation of R.C. §4507.02(A)(1), operating a motorcycle without the required endorsement in violation of R.C. §4507.02(A)(3), driving with expired plates in violation of R.C. §4503.21, and operating a motorcycle without wearing a helmet as is required for novices pursuant to R.C. §4511.53.
On June 18, 1998, Defendant-Appellee Kevin Smith (hereinafter "Kevin") was driving westbound on Cornell Street when he spotted a driver's license checkpoint being operated by the Dayton Police Department. Approximately one hundred yards before the checkpoint, Kevin stopped his car, drove it in reverse eastbound in a westbound lane on Cornell Street for a distance of about one to two hundred feet, then backed into a driveway and pulled out onto Cornell Street heading away from the checkpoint. All of this took place in plain view of Dayton Police Officer Terry Zimmerman who was one of the officers on duty at the checkpoint. Zimmerman followed Kevin to his residence and cited him for driving without being properly licensed in violation of R.C. §4507.03(A)(1), failing to pay a reinstatement fee in violation of R.C. §4507.02, and driving while under suspension in violation of R.C.G.O. §71.19.
Orr, Andre (hereinafter "Appellees")[1], and Kevin entered pleas of not guilty at their arraignments. In addition, each filed a motion to suppress claiming his seizure was unconstitutional under both the United States and Ohio Constitutions, and that all evidence obtained as a result of his seizure should consequently be suppressed. A hearing was held on August 31, 1998, after which the trial court sustained Appellees' and Kevin's motions to suppress. The State's timely notices of appeal followed, and in a November 23, 1998, decision and entry, we granted the State's motion to consolidate the three cases.
Upon complete review of the record, we find it necessary to distinguish Kevin's case from those of the other two. Although the State has not raised the issue, we find sua sponte that Kevin cannot claim standing to challenge the constitutionality of the driver's license checkpoint. See Warren County Park Dist. v. Warren County Budget Com'n (1988), 37 Ohio St.3d 68 (). It is well settled that Fourth Amendment rights are personal and, thus, may not be vicariously asserted. Rakas v. Illinois (1978), 439 U.S. 128, 133-134. The circumstances leading up to Kevin's being stopped by Officer Zimmerman are somewhat analogous to those of the defendant in a Nebraska case, wherein the Nebraska Supreme Court reasoned as follows:
While there may be nothing suspicious in making a lawful right turn onto an existing roadway or in making a lawful U-turn before reaching a roadblock, we are persuaded that the conservation officer's observation of Giessinger's actions in driving the pickup onto the shoulder of the highway and switching places with the passenger prior to approaching the roadblock was sufficient to provide the officer with the reasonable suspicion necessary to justify the investigatory stop. That is to say, Giessinger's actions provided a basis independent of the roadblock which justified his stop.
Thus, we do not reach the question whether the roadblock was lawful, for while Giessinger has standing to challenge the seizure of the vehicle in which he was riding, he does not have standing to challenge the seizure of other vehicles pursuant to the roadblock.
State v. Giessinger (Neb.1990), 454 N.W.2d 289, 294. See also Murphy v. State (Tex.App.1992), 864 S.W.2d 70, 77 (). The Nevada court's reasoning is persuasive.
In Kevin's case, according to Officer Zimmerman's uncontroverted testimony, Kevin committed a traffic violation which provided a justification for pursuing and citing him independent of the checkpoint by driving backwards eastbound in a westbound lane of traffic. Since Kevin never reached the checkpoint, and because his conduct gave Officer Zimmerman an independent reason for pursuing and citing him, he does not have standing to challenge the constitutionality of the checkpoint program. Therefore, we find the trial court erred in sustaining Kevin's motion to suppress on grounds that the checkpoint was unconstitutional. Accordingly, we reverse the decision of the trial court as to Kevin Smith and remand for further proceedings. The remainder of this opinion consequently applies only to Magus Orr's and Andre Smith's cases.
At the suppression hearing, Lieutenant John Bardun III of the Dayton Police Department testified that he acted as commander of the checkpoint program during its development and operation. Pursuant to directions from Deputy Chief of Police Lieutenant Colonel John Compston, Bardun researched checkpoint programs in other jurisdictions. With the information gleaned from his research, and guidance from Dayton's legal director via a legal opinion, Bardun developed guidelines, which are neither at issue nor necessary to reproduce for present purposes.
Lieutenant Bardun testified that the primary function of the checkpoints was to check for individuals driving without a valid license, although he was aware of no correlation between a motorist's safe operation of a motor vehicle and his or her licensure through the Bureau of Motor Vehicles. Bardun also identified a secondary function which he described as a belief in the police department that the checkpoints would "have positive affects on crime rate and -- umm -- order maintenance." Tr. at 19.
Locations for the driver's license checkpoints were selected after input was had from the various District Commanders and the Assistant Chief of Police. Among the criteria considered in the site selection process were safety and traffic volume. Although Bardun referred to "target enforcement areas" in his testimony, he also acknowledged that no statistical analysis had been performed to determine whether or where within the city limits there might be a higher concentration of unlicensed drivers or drivers whose licenses had been revoked or suspended. Instead, the "target enforcement areas" were selected on the basis of their traffic and crime problems as indicated by the district commanders, and the history and frequency of radar and/or laser units being placed at the site. In the end, two or three checkpoints were set up in each of the First, Second, Third, and Fifth Districts, but none were conducted in the Central Business District due to inclement weather.[2]
Upon arrival at the checkpoint site, participating officers would set up reflective signs measuring approximately three feet by three feet which warned drivers of the upcoming checkpoint. The signs were placed about one hundred yards before the checkpoint. At some of the checkpoint sites, motorists had an opportunity to avoid the checkpoint by turning onto a side street or making a legal U-turn; others provided no such opportunity. Although Lieutenant Bardun stated motorists who turned onto a side street before reaching the checkpoint were never pursued, he also testified that on at least some occasions, "where [the motorist] would turn the officers would follow them, run the registration, [and] see if there was some other reason to stop them." Tr. at 13.
The checkpoints were staffed by Lieutenant Bardun, a supervisor and nine or ten officers, and were operated between the hours of 6:00 p.m. and 2:00 a.m. Generally, every car was directed through each checkpoint during its operation, unless the flow of traffic made it unsafe to do so. In that case, pattern stops in which every third, fourth, or fifth car would be directed to the checkpoint while the rest were waived through would be instituted as ordered by the scene commander, Lieutenant Bardun. Deviation from the pattern was permitted only for safety reasons, and...
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