The State Of Ohio v. Jones

• Decision Date: 09 April 2010
• Docket Number: No. WD-09-011.,WD-09-011.
• Citation: 932 N.E.2d 904,187 Ohio App.3d 478
• Parties: The STATE of Ohio, Appellee, v. JONES, Appellant.
• Court: Ohio Court of Appeals

187 Ohio App.3d 478

932 N.E.2d 904

The STATE of Ohio, Appellee,

v.JONES, Appellant.

No. WD-09-011.

Court of Appeals of Ohio,Sixth District, Wood County.

Decided April 9, 2010.

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Raymond Fischer, Wood County Prosecuting Attorney, and Gwen Howe-Gebers and Jacqueline M. Kirian, Assistant Prosecuting Attorneys, Bowling Green, OH, for appellee.

Lawrence A. Gold, for appellant.

COSME, Judge.

{¶ 1} Appellant, Pamela L. Jones, entered a plea of no contest to trafficking in marijuana after 155 pounds of marijuana was found in her car following a traffic stop. The trial court sentenced appellant to eight years' incarceration, and she appeals. In her assignment of error, appellant complains that the trial court erred in denying her motion to suppress the evidence obtained during the unlawful stop, since the police officer was outside of his territorial jurisdictional limit when he observed the violations and when he stopped her.

{¶ 2} Though we agree that the suppression of ill-gotten evidence vindicates a deprivation of a constitutional right, specifically appellant's right to be free from unlawful searches and seizures under the Fourth Amendment to the United States Constitution and Section 14, Article I, Ohio Constitution, we disagree with appellant that a violation of R.C. 4513.39 rises to the level of a constitutional deprivation. Therefore, we find appellant's assignment of error without merit and affirm her conviction and sentence.

I. BACKGROUND

{¶ 3} On September 20, 2007, appellant was driving north on I-75. Sergeant Gazarek of the Perrysburg Township Police Department observed appellant's car near the 189-mile marker following a semi-truck too closely, and after passing the semi-truck, following a minivan too closely. Sergeant Gazarek also observed appellant drift over the fog line twice. He then initiated a traffic stop. Sergeant Gazarek advised appellant, who had gotten out of her car, that she would receive only a warning-as long as everything checked out with her license. However, upon returning to appellant's car, he detected the odor of raw marijuana. Based on his observations of appellant, certain items in the car, and the fact that the rental agreement for the car had expired, he asked for and received consent to search the car. In the trunk, hidden under a blanket, was 155 pounds of marijuana wrapped in cellophane. Cash in the amount of $790 was also recovered from the car.

{¶ 4} Appellant was charged with misdemeanor traffic violations for following too closely and crossing marked lanes. She was also charged with felony trafficking in drugs and drug abuse.

{¶ 5} Following the indictment, discovery, and request for a bill of particulars, appellant filed a motion to suppress. A hearing was conducted, and the trial court later filed a judgment entry denying the motion. The trial court acknowledged that there “may be some debate over a township police officer's authority to issue certain traffic violations or to effectuate an arrest for certain code infractions on an interstate highway, * * * no traffic citation was issued in the instant case and that the Defendant's arrest was the result of the discovery of contraband in her vehicle and was not the result of a traffic violation.” The traffic citation attached to appellant's brief, however, belies the trial court's finding that there was no traffic citation. The traffic ticket sets forth two traffic violations, as well as two felony charges. The trial court denied appellant's motion for reconsideration.

{¶ 6} On November 26, 2008, appellant entered a plea of no contest to the charge of trafficking in marijuana with a specification in exchange for the dismissal of the drug-abuse charge. The trial court issued its judgment the same day, accepting appellant's plea of no contest to a violation of R.C. 2925.03, trafficking in drugs. The charge of drug abuse in violation of R.C. 2925.11 was dismissed. Appellant was sentenced to eight years in prison.

II. ANALYSIS

{¶ 7} In her only assignment of error, appellant asserts: “The trial court erred in denying Appellant's motion to suppress in violation of Appellant's right to be free from unlawful search and seizures under the Fourth Amendment of the United States Constitution and Article I, Section 14 of the Ohio Constitution.” In essence, appellant argues that the evidence of the felony should have been suppressed because the officer did not have probable cause to initiate a traffic stop. Asserting that there was no probable cause, appellant argues that the subsequent search and seizure were unlawful. Finally, appellant argues that the consent to search was not freely given.

A. Sergeant Gazarek had probable cause to stop appellant.

{¶ 8} Appellant asserts that under R.C. 4513.39, Sergeant Gazarek did not have the authority to stop her for traffic offenses that he observed to have been committed outside of Perrysburg Township. The state concedes that Sergeant Gazarek may have been without authority to stop appellant for the traffic violations she was charged with, because he may not have been in the township at the time he observed the violations or at the time he stopped appellant. While we agree that Sergeant Gazarek was outside his jurisdiction, we find that he nevertheless had probable cause to make the stop.

{¶ 9} The Supreme Court of Ohio has construed R.C. 4513.39 to mean that “a township police officer has no authority to stop motorists for any of the offenses, enumerated in that statute, which have been committed on a state highway outside municipal corporations.” State v. Holbert (1974), 38 Ohio St.2d 113, 67 O.O.2d 111, 311 N.E.2d 22, paragraph two of the syllabus.

The traffic offenses that appellant has been charged with are enumerated in that statute.

{¶ 10} Under R.C. 4513.39, Sergeant Gazarek did not have the authority to stop appellant for misdemeanor violations of R.C. 4511.34 and 4511.33.

{¶ 11} Appellant suggests that because Sergeant Gazarek did not have the authority to make the traffic stop, it was unreasonable under the Fourth Amendment to the United States Constitution and Section 14, Article I, Ohio Constitution. Appellant further relies upon R.C. 2935.03(A)(1), which governs a police officer's jurisdiction to arrest: “A sheriff, deputy sheriff, marshal, deputy marshal, municipal police officer, township constable, police officer of a township or joint township police district * * * shall arrest and detain, until a warrant can be obtained, a person found violating, within the limits of the political subdivision * * * in which the peace officer is appointed, employed, or elected, a law of this state, an ordinance of a municipal corporation, or a resolution of a township.”

{¶ 12} Although appellant is correct that the stop is invalid because it occurred outside of Sergeant Gazarek's jurisdiction as defined under R.C. 2935.03(A)(1), she is not correct in her assertion that the exclusionary rule is similarly invoked.

{¶ 13} In Kettering v. Hollen (1980), 64 Ohio St.2d 232, 18 O.O.3d 435, 416 N.E.2d 598, the Supreme Court of Ohio held that a violation of R.C. 2935.03(D) was not constitutional in nature and therefore did not justify a suppression of evidence. As long as the stop, detention, and/or arrest is valid within constitutional parameters, its extraterritoriality cannot independently be a basis for suppression of evidence or dismissal of charges.

{¶ 14} Appellant's suggestion that the stop was illegal and should invoke the exclusionary rule was specifically addressed by the Ohio Supreme Court in State v. Weideman (2002), 94 Ohio St.3d 501, 764 N.E.2d 997, syllabus: “[W]here a law enforcement officer, acting outside the officer's statutory territorial jurisdiction, stops and detains a motorist for an offense committed and observed outside the officer's jurisdiction, the seizure of the motorist by the officer is not unreasonable per se under the Fourth Amendment.” (Emphasis added.) Although a stop is not per se unreasonable, a court could find that an extraterritorial stop is unreasonable based on the unique facts and circumstances of a particular case. However, in Weideman, the court held, “The state's interest in protecting the public from a person who drives an automobile in a manner that endangers other drivers outweighs [the defendant's] right to drive unhindered.” Id. at 506, 764 N.E.2d 997.

{¶ 15} In Virginia v. Moore (2008), 553 U.S. 164, 171, 128 S.Ct. 1598, 170 L.Ed.2d 559, the United States Supreme Court explained that “when an officer has probable cause to believe a person committed even a minor crime in his presence, the balancing of private and public interests is not in doubt. The arrest is constitutionally reasonable.” The court in Moore further acknowledged that although states could legislate a higher standard on searches and seizures, those laws do not alter the requirements of the Fourth Amendment.

{¶ 16} Although the Virginia statute did not provide a remedy of suppression for a violation, the United States Supreme Court concluded that “it is not the province of the Fourth Amendment to enforce state law.” Id. at 178, 128 S.Ct. 1598, 170 L.Ed.2d 559. Similarly, in State v. Jones, 121 Ohio St.3d 103, 2009-Ohio-316, 902 N.E.2d 464, ¶ 21, citing Virginia v. Moore at 178, 128 S.Ct. 1598, 170 L.Ed.2d 559, the Ohio Supreme Court observed, “Although it could have done so, the General Assembly chose not to provide any remedy for a violation of R.C. 2935.03(A)(1). Thus, pursuant to Moore, we are not in the position to rectify this possible legislative oversight by elevating a violation of R.C. 2935.03 to a Fourth Amendment violation and imposing the exclusionary rule, because the stop in this case was constitutionally sound.” (Footnote omitted.)

{¶ 17} We conclude that Sergeant Gazarek had probable cause to stop appellant. The manner in which appellant was operating her...