State v. Long, No. 96CA2196.

• Court: United States Court of Appeals (Ohio)
• Writing for the Court: STEPHENSON, Presiding.
• Citation: 127 Ohio App.3d 328,713 NE 2d 1
• Parties: The STATE of Ohio, Appellant, v. LONG, Appellee.
• Docket Number: No. 96CA2196.
• Decision Date: 22 April 1998

127 Ohio App.3d 328
713 NE 2d 1

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

No. 96CA2196.

Court of Appeals of Ohio, Fourth District, Ross County.

Decided April 22, 1998.

127 Ohio App.3d 331

Michael Ater, Ross County Assistant Prosecuting Attorney, for appellant

James T. Boulger, for appellee.

STEPHENSON, Presiding Judge.

This is an appeal by the state of Ohio pursuant to Crim.R. 12(J) and R.C. 2945.67 from a judgment entered by the Common Pleas Court of Ross County, Ohio, ordering the suppression of evidence that was to be used against Rick A. Long, defendant below and appellee herein. The following errors are assigned for our review:

"I. The trial court erred in finding that defendant was effectively arrested when Trooper Coffman seized the keys to the truck.

"II. The trial court erred in finding that there was not probable cause to arrest defendant for driving under the influence."

The record reveals the following facts pertinent to this appeal. On the morning of July 7, 1995, Rebecca Kauffman of the Ohio State Highway Patrol was alerted by a passing motorist that there was a car pulled off and parked on the side of Crouse Chapel Road with a driver slumped over. Trooper Kauffman went to investigate. She parked her cruiser behind the vehicle, got out, and went to the passenger-side window to ascertain whether there were any weapons on the front seat. Satisfied that nothing was there which could be used to harm her, she went around to the driver's side of the car and tried to rouse the occupant by knocking on the window. There was no response, and Trooper Kauffman eventually opened the door, grabbed the occupant, and began shaking him. The occupant woke up but was very disoriented. He identified himself as Rick A. Long (appellant herein) and stepped out of the vehicle. Trooper Kauffman then noticed the car keys on the front seat where appellant had been sitting and grabbed them. She also detected "a strong odor of alcohol about him" and proceeded to conduct a horizontal gaze nystagmus test. Appellant performed poorly, and Trooper Kauffman radioed her supervisor (Sgt. Fisher) and requested that he come to the scene. In the meantime, she was going to conduct some field sobriety tests. The officer and appellant walked toward the rear of the vehicle and she asked whether he had "anything on" him. Appellant then reached into his pocket, pulled out a "Centrum" bottle, handed it to Trooper Kauffman, and volunteered that he had some "amphetamines." Sgt. Fisher arrived on the scene, and appellant was informed that he was under arrest.

On or about August 25, 1995, the Ross County Grand Jury handed down an indictment charging appellant with drug abuse in violation of R.C. 2925.11. He filed a motion to suppress the evidence against him, arguing that it had been

127 Ohio App.3d 332

obtained in violation of his state and federal constitutional rights. Specifically, appellant claimed that Trooper Kauffman lacked reasonable suspicion to detain him and, later, lacked probable cause to make an arrest. A hearing was held on November 20, 1995, at which time both Trooper Kauffman and appellant gave testimony regarding their recollections of the events of that morning. The lower court issued a decision on March 15, 1996, sustaining the motion. It was determined that appellant was "effectively arrested" when Trooper Kauffman took possession of his car keys. The court found that the facts and circumstances at that time were not sufficient to give the officer "probable cause" to make such an arrest. Observations made by Trooper Kauffman were also called into question, as it was noted that "there were indications that [appellant] was not drunk." (Emphasis added.) In sum, the trial court ruled that the arrest was improper and that the evidence seized as a result thereof should be suppressed. This appeal followed

It should be noted at the outset that appellate review of a ruling on a motion to suppress presents a mixed question of law and fact. See United States v. Martinez (C.A.11, 1992), 949 F.2d 1117, 1119; United States v. Mejia (C.A.9, 1991), 953 F.2d 461, 464-465; United States v. Wilson (C.A.11, 1990), 894 F.2d 1245, 1254. A trial court assumes the role of trier of fact during proceedings on a motion to suppress. State v. Payne (1995), 104 Ohio App.3d 364, 367, 662 N.E.2d 60, 61-62; State v. Robinson (1994), 98 Ohio App.3d 560, 570, 649 N.E.2d 18, 25; State v. Rossiter (1993), 88 Ohio App.3d 162, 166, 623 N.E.2d 645, 648. The evaluations of evidence and credibility of witnesses during such proceedings are issues to be determined by the trial court. State v. Smith (1997), 80 Ohio St.3d 89, 105, 684 N.E.2d 668, 685; State v. Brooks (1996), 75 Ohio St.3d 148, 154, 661 N.E.2d 1030, 1036-1037; State v. Fanning (1982), 1 Ohio St.3d 19, 20, 1 OBR 57, 57-58, 437 N.E.2d 583, 584-585. A court's factual findings are to be accepted unless they are "clearly erroneous." State v. Babcock (Feb. 13, 1997), Washington App. No. 95CA40, unreported, 1997 WL 79878; see, also, United States v. Lewis (C.A.1, 1994), 40 F.3d 1325, 1332. That is to say that a reviewing court is bound to accept the factual determinations of a trial court during a suppression hearing so long as they are supported by competent and credible evidence. State v. Harris (1994), 98 Ohio App.3d 543, 546, 649 N.E.2d 7, 9; State v. Claytor (1993), 85 Ohio App.3d 623, 627, 620 N.E.2d 906, 908; see, also, State v. DePalma (Jan. 18, 1991), Ross App. No. 1633, unreported, 1991 WL 13824. The application of the law to those facts, however, is then subject to a de novo standard of review. Harris, supra, 98 Ohio App.3d at 546, 649 N.E.2d at 9; State v. Anderson (1995), 100 Ohio App.3d 688, 691, 654 N.E.2d 1034, 1036; see, also Lewis, supra, 40 F.3d at 1332; Wilson, supra, 894 F.2d at 1254. With these principles in mind, we turn our attention to the issues raised by the parties in their briefs.

127 Ohio App.3d 333

The state's two assignments of error are interrelated and will be considered together. First, it is argued that the trial court incorrectly determined the moment of arrest to have occurred when Trooper Kauffman took appellant's keys from the front seat of the car. We agree. Constitutional jurisprudence provides for three types of contact between citizens and police: a consensual encounter, a brief detention under the auspices of Terry v. Ohio (1968), 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889, and a full-fledged arrest. State v. Schott (May 16, 1997), Darke App. No. 1415, unreported, 1997 WL 254141; State v. Osborne (Dec. 13, 1995), Montgomery App. No. 15151, unreported, 1995 WL 737913. The word "arrest" is a term of art and signifies the apprehension or detention of the person of another in order that he may be forthcoming to answer an alleged crime. State v. Jaeger (July 9, 1993), Washington App. No. 92CA30, unreported, 1993 WL 248605; see, also, 26 Ohio Jurisprudence 3d (1981) 146, Criminal Law, Section 453. An arrest is deemed to have occurred if there is (1) an intent to arrest, (2) under real or pretended authority, (3) accompanied by an actual or constructive seizure or detention of the person, and (4) which is so understood by the person arrested. See State v. Claytor (1991), 61 Ohio St.3d 234, 239, 574 N.E.2d 472, 477; State v. Darrah (1980), 64 Ohio St.2d 22, 26, 18 O.O.3d 193, 195, 412 N.E.2d 1328, 1330-1331; State v. Barker (1978), 53 Ohio St.2d 135, 139, 7 O.O.3d 213, 215-216, 372 N.E.2d 1324, 1328-1329. We need not analyze all of these requirements in relation to the cause sub judice because, as discussed below, there was clearly a failure to establish the first one

There was no evidence adduced at the suppression hearing below to show that Trooper Kauffman intended to arrest appellant when she removed the keys from the car seat. To the contrary, she expressly testified that "he was not under arrest at that time." It may be true that such action prevented appellant from leaving the scene. However, the officer explained that her...