State v. Sandra Hemmer
| Decision Date | 25 May 2000 |
| Docket Number | 00-LW-2140,8-99-20 |
| Citation | 2000 Ohio 1842 |
| Parties | STATE OF OHIO, PLAINTIFF-APPELLEE v. SANDRA HEMMER, DEFENDANT-APPELLANT CASE NUMBER 8-99-20 |
| Court | Ohio Court of Appeals |
ANN BECK, Attorney at Law, Reg. #0034593, 709 N. Main Street P.O. Box 549, Bellefontaine, OH 43311, For Appellant.
WILLIAM T. GOSLEE, City Prosecutor, Reg. #0041924, 226 West Columbus Avenue, Bellefontaine, OH 43311, For Appellee.
On August 22, 1999, Appellant was arrested and charged with Driving Under the Influence (D.U.I.), a violation of R.C §4511.19(A)(3). On August 30, 1999 Appellant entered a plea of Not Guilty. On November 18, 1999 a Judgment Entry was entered denying Appellant's Motion to Suppress Evidence. On December 22, 1999 a Judgment Entry was entered in which Appellant entered a plea of No Contest and was convicted of the D.U.I. charge.
At the November 12, 1999 hearing on Appellant's Motion to Suppress, Detective Jon Stout, an officer with the Logan County Sheriff's Office, testified that he observed Appellant driving her vehicle on August 22, 1999. Detective Stout further testified that he was off-duty, driving with his family in his personal vehicle, and that while exiting the parking lot of the Pizza Hut, he observed Appellant's vehicle stop in the middle of an intersection and then continue on traveling "%all over the road, back and forth quite a bit." Detective Stout testified that he attempted to contact the Sheriff's Department via cell phone but was initially unsuccessful due to difficulties with the cellular phone. As Detective Stout continued to follow Appellant's vehicle, he observed the vehicle Appellant then pulled into a private driveway at which time Detective Stout stopped his vehicle and approached Appellant. Detective Stout identified himself, reached in a turned off the ignition to Appellant's vehicle, and instructed Appellant to exit her automobile. Detective Stout observed Appellant having difficulty exiting the vehicle, detected a strong odor of alcohol and observed that Appellant's speech was "extremely slurred."
Logan County Sheriff Deputy, Sergeant Galyk, arrived shortly after Appellant exited her vehicle. After Sergeant Galyk arrived Detective Stout left. Following conversations with both Detective Stout and Appellant and after personally observing that Appellant's eyes were glassy, she was "stumbling around," and she was emitting a strong odor of alcohol, Sergeant Galyk administered various field sobriety tests. Appellant was then transported to the Sheriff's Department where she was given Miranda warnings and administered a BAC test.
It is from the trial court's denial of the Motion to Suppress Evidence that Appellant now appeals, prosecuting two assignments of error:
The trial court erred by denying Appellant's Motion to Suppress all the evidence flowing from Appellant's arrest.
a.) Whether Appellant was under arrest when the off-duty officer pulled in behind her in a driveway, reached into her car, shut off the engine of her car, told her she was under arrest and ordered her out of the car and further testified that she was not free to leave.
The trial court erred when it refused to grant Appellant's Motion to Suppress the evidence flowing from Appellant's arrest where there was no probable cause to arrest the Defendant for driving while under the influence.
a.) Whether the officer had probable cause to arrest when the stop was made by an off-duty officer who was not in uniform or in (sic) marked cruiser.
Because both of Appellant's assignments of error concern the propriety of the trial court's denial of her motion to suppress, we begin our review 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, certiorari denied (1984), 469 U.S. 824, 105 S.Ct. 101, 83 L.Ed.2d 46; 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, certiorari denied (1992), 505 U.S. 1227, 112 S.Ct. 3048, 120 L.Ed.2d 915, citing State v. Fanning (1982), 1 Ohio St.3d 19, 20, 437 N.E.2d 583, 584; State v. Clay (1972), 34 Ohio St.2d 250; 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, 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, 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 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. 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 issues raised by the parties in their briefs.
The trial court erred by denying Appellant's Motion to Suppress all the evidence flowing from Appellant's arrest.
In this assignment of error, Appellant asserts that Detective Stout immediately placed her under "arrest." The significance of such an assertion is not readily apparent in Appellant's brief, however, we discern that Appellant is arguing either Detective Stout was prohibited from making such an arrest or that Appellant was not properly advised of her Miranda warnings following the arrest.
Appellant's arguments relevant to this assignment of error are premised on the assertion that Detective Stout immediately placed Appellant under formal "arrest." We therefore initially endeavor to determine whether the encounter between Detective Stout and Appellant constituted a formal arrest sufficient to trigger the protections appurtenant thereto.
Appellant argues that because Detective Stout positioned his personal vehicle behind Appellant's so that Appellant could not back out of the driveway, because Detective Stout instructed Appellant to exit her vehicle and remain near the automobile, because Appellant was denied her requests to speak with her husband, because Detective Stout testified that Appellant was not free to leave, and because Detective Stout questioned Appellant, she was under custodial interrogation. We think the facts advanced by Appellant are typical of most traffic stops. That is, when a suspect is detained for the suspected violation of one or more traffic laws, including driving left of center and/or driving while under the influence of alcohol, the suspect is not free to drive away, is not permitted to interact with persons unrelated to the stop, is often times requested to exit his or her automobile, and is generally asked a moderate number of questions to determine his or her identity and to try to obtain information confirming or dispelling the officer's suspicion.
The United States Supreme Court has analogized the usual traffic stop to a "Terry stop." See, Berkemer v. McCarty (1984), 468 U.S. 420, 82 L.Ed.2d 317, 104 S.Ct. 3138. The "nonthreatening character" of the detentions associated with a normal traffic stop and a Terry stop lead the Berkemer Court to hold that "%persons temporarily detained pursuant to such stops are not 'in custody' for the purposes of Miranda." Berkemer, 468 U.S. at 440, 82 L.Ed.2d at 334-335, 104 S.Ct. at 3150. Consequently, unless and until "%a suspect's freedom is curtailed to a 'degree associated with formal arrest," the safeguards prescribed by Miranda are not applicable. Id., 468 U.S. at 440, 82 L.Ed.2d at 335, 104 S.Ct. at 3150, citing California v. Behler (1983), 463 U.S. 1121, 77 L.Ed.2d 1275, 103 S.Ct. 3517.
The facts presented by the case sub judice indicate that Appellant was not immediately subjected to treatment by Detective Stout that rendered her "in custody" such that she was entitled to the full panoply of protections prescribed by Miranda. Consequently, for purposes of Miranda, we hold that Appellant's freedom of action was not curtailed to a degree associated with formal arrest. We further hold that Detective Stout was not required to advise Appellant of her Miranda rights. Accordingly, any evidence obtained during Detective Stout's investigation or Sergeant Galyk's subsequent investigation is...
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