State v. Norman

• Decision Date: 20 December 1999
• Docket Number: No. 2-99-25.,2-99-25.
• Citation: 136 Ohio App.3d 46,735 NE 2d 953
• Parties: The STATE of Ohio, Appellee, v. NORMAN, Appellant.
• Court: Ohio Court of Appeals

136 Ohio App.3d 46

735 NE 2d 953

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

No. 2-99-25.

Court of Appeals of Ohio, Third District, Auglaize County.

Decided December 20, 1999.

S. Mark Weller, Public Defender, for appellant.

Edwin Pierce, Prosecuting Attorney, R. Andrew Augsburger, Assistant Prosecuting Attorney, for appellee.

THOMAS F. BRYANT, Presiding Judge.

Defendant-appellant, Charles T. Norman Jr., appeals from the journal entry of the Auglaize County Municipal Court denying his motion to suppress.

On December 6, 1998, appellant was arrested by Ohio State Trooper Lisa Miller and cited for violating R.C. 4511.19(A)(1), operating a motor vehicle while under the influence of alcohol (OMVI). On February 26, 1999, appellant filed a motion to suppress and a hearing on the motion was held on May 11, 1999.

At the suppression hearing, Miller testified to the following facts: (1) at approximately 2:43 a.m., she was traveling south on CR25A when she crested a hill near Hauss Road in Auglaize County, (2) she observed a vehicle stopped at a stop sign at the intersection of Infirmary Road and CR25A, (3) the vehicle remained stationary at the intersection as Miller traveled approximately onequarter mile to Infirmary Road, (4) the vehicle remained stopped as she traveled another one-half mile past Infirmary Road to the Duchouquet Township House, (5) there was no other traffic in the area at the time, (6) Miller turned around at the Township House and returned to the intersection of Infirmary Road and CR25A where the vehicle was still stationary, and (7) Miller turned left onto Infirmary Road, activated her overhead lights, and pulled alongside the vehicle to inquire the reason for its sitting at the stop sign.

Miller further testified that from the time she first observed the vehicle stopped at the intersection until she pulled alongside it approximately one and one-half to two minutes had elapsed. That is, she observed the automobile remain stationary at the intersection of Infirmary Road and CR25A for at least approximately one and one-half to two minutes. Miller further testified that because there were no other vehicles in the area at the time, it was highly unusual for a vehicle to remain stopped at the intersection for that length of time. She testified that she was concerned for the safety of other motorists as well as the passengers of the stationary vehicle.

With respect to why Miller approached the vehicle, the following colloquy between her and the prosecutor is relevant:

Q. "Trooper, why is it that you wanted to stop and speak to the driver of the vehicle?"

A. "Well it is highly unusual for anyone to be stopped at the intersection for that amount of time, knowing that there is not traffic around, and there has been instances where vehicles have been broken down at intersections. I have been on instances where subjects have been passed out at the wheel as intersections, and I just needed to clarify to see if there was any problem at all."

Q. "So safety was your concern?"

A. "Yes Sir."

Q. "Not just for other motorists, but for passengers of that vehicle?"

A. "That is correct. I did not know what the problem was."

On direct examination, Miller did not indicate that she believed appellant was or had been engaging in criminal activity.

On cross-examination, Miller confirmed that she did not return to appellant's stationary vehicle because she believed a crime had been committed or was in progress. Rather, Miller reasserted that she returned to investigate the reasons for the unusual circumstances presented.

On May 19, 1999, the trial court entered its judgment entry denying appellant's motion to suppress. In its journal entry, the trial court concluded the following facts represented the correct version of the encounter between Miller and appellant:

"The officer testified that she observed defendant's vehicle stopped at a stop sign, late at night at a rural intersection. She was approximately ¼ mile from the intersection. The vehicle remained at the intersection as she passed and continued to stay at the intersection while the officer proceeded south. Since the vehicle did not move from its location, the officer testified that she turned at the township house about ½ mile down the road and proceeded back to the intersection. The defendant's vehicle was still stopped at the stop sign. She turned onto the side road and pulled up along side the defendant's vehicle. She was advised by the defendant that he was stopped there while he and his passenger decided whether they were going home or for a breakfast. The officer turned to park behind the defendant and proceeded with further investigation."

On June 22, 1999, appellant changed his plea of not guilty to one of no contest and was found guilty by the trial court on that same day. Appellant was sentenced to serve three (3) days in jail, fined $500.00, plus costs, and had his license suspended for one year. The jail time and $300.00 of the fine were suspended on condition of completion of a driver intervention program within ninety days and adherence to the recommendations of the session.

It is from the denial of appellant's motion to suppress that he brings this appeal, asserting one assignment of error:

"The trial court erred when it failed to grant the defendant's Motion to Suppress on the grounds that his arrest was the result of an illegal search and seizure on the part of the State of Ohio, in violation of his constitutional rights as guaranteed by the Fourth Amendment to the United States Constitution and Article One, Section 14 of the Constitution of the State of Ohio."

We note that in his motion to suppress appellant initially asserted that "* * * the arrest was made without probable cause and that the initial stop by the officer was illegal, as it was made without articulable suspicion as to the fact that any offense had been committed." At the suppression hearing, however, appellant's trial counsel stated that the only issue being contested was the initial stop.¹ With this limitation in mind, we turn to the merits of appellant's assignment of error.

We begin our review of the motion to suppress ruling by noting the applicable standards of review for this court.

Review of a motion to suppress ruling involves a mixed question of law and fact. United States v. McConney (C.A.9, 1984), 728 F.2d 1195; 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. In a motion to suppress, the trial court assumes the role of the trier of facts, and, as such, is in the best position to resolve questions of fact and to evaluate witness credibility. See, e.g., State v. Mills (1992), 62 Ohio St.3d 357, 366, 582 N.E.2d 972, 981, citing State v. Fanning (1982), 1 Ohio St.3d 19, 20, 1 OBR 57, 57-58, 437 N.E.2d 583, 584; State v. Clay (1973), 34 Ohio St.2d 250, 63 O.O.2d 391, 298 N.E.2d 137; 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 weight of the evidence is also primarily for the trier of the facts. State v. DeHass (1967), 10 Ohio St.2d 230, 39 O.O.2d 366, 227 N.E.2d 212, paragraph one of the syllabus; 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; Fanning, 1 Ohio St.3d 19, 20,1 OBR 57, 57-58,437 N.E.2d 583, 584-585.

Accordingly, in our review, we are bound to accept the trial court's findings of fact if they are supported by competent, credible evidence. Brooks, 75 Ohio St.3d at 154, 661 N.E.2d at 1030; State v. Williams (1993), 86 Ohio App.3d 37, 41, 619 N.E.2d 1141, 1143; United States v. Lewis (C.A.1, 1994), 40 F.3d 1325, 1332; 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. Accepting those facts as true, we must independently determine as a matter of law, without deference to the trial court's conclusion, whether they meet the applicable legal standard. Id.; Ornelas v. United States (1996), 517 U.S. 690, 116 S.Ct. 1657, 134 L.Ed.2d 911; State v. Anderson (1995), 100 Ohio App.3d 688, 691, 654 N.E.2d 1034, 1036. That is, the application of the law to the trial court's findings of fact is subject to a de novo standard of review. Harris, supra, 98 Ohio App.3d at 546, 649 N.E.2d at 9; Anderson, 100 Ohio App.3d at 691, 654 N.E.2d at 1036; see, also, Lewis, supra, 40 F.3d at 1332; Wilson, supra, 894 F.2d at 1254. With these principles in mind, we turn to the issue raised by the parties in their briefs.

When a police officer stops a motor vehicle and detains its occupants, he has seized it and its occupants within the meaning of the Fourth Amendment to the United States Constitution. See Terry v. Ohio (1968), 392 U.S. 1, 8, 9, 88 S.Ct. 1868, 1872, 1873, 20 L.Ed.2d 889, 898, 898-899; Berkemer v. McCarty (1984), 468 U.S. 420, 437-439, 104 S.Ct. 3138, 3149, 82 L.Ed.2d 317, 332-334; United States v. Mendenhall (1980), 446 U.S. 544, 556-557, 100 S.Ct. 1870, 1878, 64 L.Ed.2d 497, 510-512 (opinion of Stewart J.); Delaware v. Prouse (1979), 440 U.S. 648, 99 S.Ct. 1391, 59 L.Ed.2d 660. The Fourth Amendment provides:

"The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized."

The ultimate standard set forth in the Fourth Amendment is reasonableness.

The law governing investigative stops of automobiles is clear. The Fourth and Fourteenth Amendments to the United States Constitution as well as Section...