[Cite as State v. Studley,

.]

IN THE COURT OF APPEALS FOR GREENE COUNTY, OHIO

STATE OF OHIO :

Plaintiff-Appellee : C.A. CASE NO. 2010 CA 81

v. : T.C. NO. CRB 1001086

KATHERINE STUDLEY : (Criminal appeal from Municipal Court) Defendant-Appellant :

:

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OPINION

Rendered on the 28th day of October , 2011.

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BETSY DEEDS, Atty. Reg. No. 0076747 and AMELIA N. BLANKENSHIP, Atty. Reg. No. 0082254, One S. Main Street, Suite 1590, Dayton, Ohio 45402 Attorneys for Plaintiff-Appellee

JON PAUL RION, Atty. Reg. No. 0067020, 130 W. Second Street, Suite 2150, P. O. Box 1262, Dayton, Ohio 45402 Attorney for Defendant-Appellant

..........

DONOVAN, J.

{¶ 1} This matter is before the Court on the Notice of Appeal of Katherine Studley,

filed December 6, 2010. On May 25, 2010, Officer David Holley of the Beavercreek Police

Department cited Studley for underage possession/consumption of alcohol, a misdemeanor 2

of the first degree, in violation of R.C. 4301.69(E), and possession of drug paraphernalia, in

violation of R.C. 2925.14, a misdemeanor of the fourth degree. Studley pled not guilty on

June 7, 2010, and she also filed a motion to suppress. On November 19, 2010, after a

hearing, the Fairborn Municipal Court overruled Studley’s motion to suppress. Studley pled

no contest to both charges. The municipal court fined Studley $100.00 for each offense,

and sentenced her to 60 days in jail, suspended, for the first degree misdemeanor and to 30

days, suspended, for the misdemeanor of the fourth degree.

{¶ 2} At the suppression hearing, Officer Holley testified that on May 25, 2010,

around 3:15 a.m., he was on routine patrol, in a marked cruiser, when he observed a blue

Ford van driving approximately 30 miles per hour, “slower than the average traffic, which is

40 miles an hour,” on Indian Ripple Road. Holley testified the van was “slowing near the

intersections but not turning.” The van then turned into a residential plat near I-675.

Holley stated that he ran the license plate and determined that the car was registered to an

owner at an address in Riverside.

{¶ 3} Holley testified that he was aware of approximately 40 vehicle break-ins and

thefts in the area within the last month. Holley testified that no one had been apprehended

in connection with the thefts. As he continued to follow the van through the plat, he

“noticed the passengers in the back kept looking back at me, moving around from side to

side, leaning forward and backwards.” Holley “didn’t know if they were hiding anything or

trying to conceal items from me.”1 Holley stated that the vehicle slowed down and then

1 We note the narrative incident report generated on the date of Studley’s arrest, five months before the motion hearing, contains no statement regarding movement in the vehicle prior to the stop. 3

sped back up through intersections, and that it eventually circled back near to the area

where he had initially observed it. Holley testified that, based upon his training and

experience, the “sporadic” driving pattern suggested to him that the occupants of the vehicle

might be “scouting the area for vehicles to break in, open garages.”

{¶ 4} Holley initiated a traffic stop as the van approached Indian Ripple, having

followed the van for four or five minutes. He informed the driver, Alan Reddy, “* * * the

reason I stopped him was we’ve had a lot of vehicle break-ins, to me his driving seemed

suspicious and I didn’t know what was going on and all his passengers were looking back at

me, seemed to be concealing items.” Reddy responded that he was just aimlessly driving

around with his friends before they proceeded home. Reddy did produce a valid driver’s

license. Holley asked Reddy if there was anything illegal in the vehicle, and he asked him if

he could search the van for any items that could be stolen. Reddy consented to the search.

{¶ 5} Officer Duncan arrived on the scene and, for officer safety, Holley asked

Reddy and the three passengers in the back seat, one of whom was Studley, to step out of the

van. Reddy and the passengers remained with Duncan while Holley searched the van. In

the course of his search, Holley discovered a bottle of margarita mix, containing alcohol, that

was half full. According to Holley, the bottle “was in between the passenger seat and the

driver[‘s] seat in the middle - - I would call it the cowl (sic) of the van and it was in between

all four compartments.” Holley stated that Studley identified the bottle as hers voluntarily.

{¶ 6} Duncan advised Holley that he detected alcohol on the breath of Studley and

another female passenger. Holley observed that Studley’s and the other female passenger’s

eyes were glassy and red, and that they smelled of alcohol. Holley stated that he 4

administered the horizontal gaze nystagmus test. He testified that Studley “had nystagmus

in her eyes.” Holley testified that he placed Studley under arrest, advised her of her rights,

and put her in the cruiser. The following exchange occurred:

{¶ 7} “Q. And she admitted the alcohol was hers?

{¶ 8} “A. Yes.

{¶ 9} “Q. Okay. And then what happened?

{¶ 10} “A. Upon arresting Miss Studley, I also located a pipe for smoking

marijuana in her purse.

{¶ 11} “Q. Okay. Did she identify the purse as being hers?

{¶ 12} “A. Yes.

{¶ 13} “Q. Did she have it on her?

{¶ 14} “A. It was inside the van.

{¶ 15} “Q. She said it was her purse?

{¶ 16} “A. Yes, she did.

{¶ 17} “ * * *

{¶ 18} “A. She also furthered (sic) to tell me that the marijuana pipe was a friend’s

she was holding for her in her purse and she had forgotten that it was in there.

{¶ 19} “Q. Did you ask her any questions about the pipe?

{¶ 20} “A. After I arrested and Mirandized her and she told me the only thing she

knew that it was a friend from college and she was holding the pipe for her.

{¶ 21} “Q. Let’s talk about the Miranda. You arrested her for the alcohol?

{¶ 22} “A. Yes. 5

{¶ 23} “Q. And when did you give her the Miranda warnings?

{¶ 24} “A. After I arrested her for the alcohol, right before I put her in the vehicle

and searched the purse.”

{¶ 25} On cross-examination, Holley testified that he ran the license plate number of

the van due to the unusual driving pattern. He admitted that his report of the incident

indicated that he performed a random vehicle verification, and he maintained that his report

was inaccurate in that respect. Holley stated that his computer search revealed that the

vehicle was properly licensed and tagged, and he testified that he did not observe any traffic

violations. He agreed that the fact that the vehicle was not registered to an owner in the plat

raised his suspicions, and he stated that “only the residents would drive through [the plat], or

people visiting residents.” Holley stated that he did not observe any items in the van as he

followed it. Holley testified that there were no vehicle thefts reported on the night of the

incident, and he did not search the car in relation to a specific theft. He testified that there

had been thefts the previous evening. He stated that he had no information linking the van

to any of the recent thefts.

{¶ 26} Holley stated that the margarita mix had a cap on it. He testified that he

removed it from the van, without saying anything, and he “put the bottle on the hood of my

cruiser so it could be observed by Officer Duncan and the passengers of the vehicle. Miss

Studley offered her statement of it is mine.”

{¶ 27} The following exchange occurred:

{¶ 28} “Q. Okay. And so in response to that then, did you search her purse?

{¶ 29} “A. Correct. It was inside the vehicle. 6

{¶ 30} “Q. And did you have permission from her to search her purse?

{¶ 31} “* * *

{¶ 32} “A. Yes, I did.

{¶ 33} “* * *

{¶ 34} “A. I asked her if she had anything illegal in her purse if she minded if I

searched it. She said to her knowledge there is nothing illegal in the purse. I then

proceeded to search the purse. Then I found - -

{¶ 35} “* * *

{¶ 36} “A. - - the pipe of marijuana, sir, and she said, oh I forgot that was in there.

I’m holding it for a friend.”

{¶ 37} Holley was asked if he included Studley’s consent to search her purse in his

police report, and he replied that he was “not sure what’s in my report.” The following

exchange occurred:

{¶ 38} “Q. Someone giving permission to search their purse would be a significant

piece of information to put in your report, wouldn’t it?

{¶ 39} “A. Could be, yes.

{¶ 40} “Q. The truth to that is it was a search - - when you searched the purse, it

was a search pursuant to the arrest for prohibition, wasn’t it?

{¶ 41} “A. Yes.

{¶ 42} “Q. That was the basis that you had in your mind for the search?

{¶ 43} “A. I still asked permission, yes, sir.”

{¶ 44} Holley stated that Duncan advised him that Studley was under the age of 21, 7

and that Studley herself also told him that she was 19 years old. Holley stated that Studley

was never handcuffed. He testified that Reddy waited for the “paperwork” to be completed,

and that Studley returned to the van and left with Reddy and the others.

{¶ 45} On re-direct, Holley testified that the multiple thefts he was aware of had

occurred during his shift, between the hours of 11 p.m. and 7:30 a.m.

{¶ 46} In overruling the motion to suppress, the trial court determined that Holley

had a reasonable and articulable suspicion to initiate the traffic stop based upon the “high

crime area” coupled with the following facts: the van was observed within the time period

that the recent thefts had occurred; the owner of the van did not reside in the plat; the van

repeatedly sped up and slowed down; the occupants of the van made furtive movements; the

van essentially drove in a circle back to where it was initially observed.

{¶ 47} The court further determined that Holley had probable cause to arrest Studley

since, after Reddy consented to a search of the van, Holley found an opened, half full bottle

of margarita mix that contained alcohol, and Studley volunteered that it belonged to her.

The court further noted that Studley smelled of alcohol and had red, glassy eyes.

{¶ 48} The court determined that the search of Studley’s purse was proper on two

bases, since it was done incident to arrest2 and since Holley obtained Studley’s consent.

{¶ 49} Finally, the court determined that there was no Miranda violation, since

Studley was advised of her Miranda rights at the time of her arrest, and she did not invoke

her rights after being advised of them.

2 We note, however, that a physical arrest of Studley was never completed as she was ultimately permitted to return to the vehicle with Reddy and leave the scene. 8

{¶ 50} Studley asserts two assignments of error. Her first assignment of error is as

follows:

{¶ 51} “THE TRIAL COURT ERRED IN UPHOLDING THE STOP OF THE

VEHICLE AS THE STOP WAS MADE WITHOUT ANY SUSPICION THIS VEHICLE

WAS INVOLVED IN CRIMINAL ACTIVITY.”

{¶ 52} According to Studley, the driving pattern that Holley observed is “consistent

with many lawful scenarios; a lost driver searching for an address or street, a driver

navigating at night through a neighborhood with cars parked along the street, a cautious

nighttime driver, etc.” Studley further asserts that Holley had no information linking the

van to criminal activity, and he did not observe any traffic violations. Studley argues that

Holley acted on a hunch.

{¶ 53} “Appellate courts give great deference to the factual findings of the trier of

facts. (Internal citations omitted). At a suppression hearing, the trial court serves as the trier

of fact, and must judge the credibility of witnesses and the weight of the evidence. (Internal

citations omitted). The trial court is in the best position to resolve questions of fact and

evaluate witness credibility. (Internal citations omitted). In reviewing a trial court’s

decision on a motion to suppress, an appellate court accepts the trial court’s factual findings,

relies on the trial court’s ability to assess the credibility of witnesses, and independently

determines whether the trial court applied the proper legal standard to the facts as found.

(Internal citations omitted). An appellate court is bound to accept the trial court’s factual

findings as long as they are supported by competent, credible evidence. (Internal citations

omitted).” State v. Purser, Greene App. No. 2006 CA 14,

. 9

{¶ 54} “Law enforcement officers may briefly stop and detain an individual for

investigation if the officers have a reasonable, articulable suspicion that criminal

activity may be afoot. That is something more than an unparticularized suspicion

or mere hunch, but less than the level of suspicion required for probable cause.

Terry v. Ohio (1968),

,

,

; (further citation

omitted). To satisfy that standard, police must be able to point to specific and

articulable facts which, taken together with the rational inferences from those facts,

reasonably warrant the intrusion. (Citations omitted).

{¶ 55} “The propriety of an investigative stop or detention must be viewed in

light of the totality of the surrounding facts and circumstances. State v. Bobo

(1988),

. These circumstances must be viewed through the

eyes of a reasonable and prudent police officer on the scene who must react to

events as they unfold. (Citation omitted). While a series of events may appear

innocent when viewed separately, taken together, they can warrant further

investigation. (Citation omitted). For this reason, the court must take into

consideration the officer’s training and experience and understand how the situation

would be viewed by the officer on the street. (Citation omitted).” State v. Roberts,

Montgomery App. No. 21221,

.

{¶ 56} In order to determine whether an officer has a reasonable and

articulable suspicion justifying a stop, “it is necessary to examine the impetus

behind the stop.” State v. Baughman, Warren App. Nos. CA2010-08-069,

, ¶16. “‘[T]he stop and inquiry must be “reasonably related in scope

to the justification for their initiation.”’ (Citations omitted). Typically, this means 10

that the officer may ask the detainee a moderate number of questions to determine

his identity and to try to obtain information confirming or dispelling the officer’s

suspicions. But the detainee is not obliged to respond. And, unless the detainee’s

answers provide the officer with probable cause to arrest him, he must then be

released.” State v. Mays,

, 2008- Ohio-4539, ¶ 14.

{¶ 57} “‘[I]f an officer, during the initial detention of a motorist, ascertains

additional specific and articulable facts that give rise to a reasonable suspicion of

criminal activity beyond that which prompted the stop,’ * * * ‘the officer may further

detain the motorist and conduct a more in-depth investigation.’ (Citations

omitted).” State v. Little, Warren App. No. CA2010-12-124,

, ¶ 15.

{¶ 58} Finally, “‘courts still retain their traditional responsibility to guard

against police conduct which is overbearing or harassing, or which trenches upon

personal security without the objective evidentiary justification which the

Constitution requires. When such conduct is identified, it must be condemned by

the judiciary and its fruits must be excluded from evidence in criminal trials.’” State

v. Phillips, Montgomery App. No. 19878,

(quoting Terry, at

15.)

{¶ 59} Studley directs our attention to State v. Carter,

,

. The arresting officer therein, while in an unmarked cruiser,

observed a white Bronco at 10:15 a.m., and he testified that he “vaguely

remembered” a police broadcast one or two weeks earlier about a Bronco being

involved in a shooting 20-25 blocks from his current location. After briefly losing

sight of the vehicle, the officer observed the Bronco parked behind the garage of a 11

residence in a high crime area. As the officer surveilled the scene, he observed an

individual carrying a bundle walk from a back yard and get into the passenger seat

of the Bronco, which then pulled away. The officer testified that he suspected a

breaking and entering had occurred. When asked what evidence supported that

suspicion, he replied, “There was no evidence, counselor, of that happening. That

just happened to be a procedural type of thing.” This Court determined that the

facts available to the arresting officer at the moment of seizure “would not warrant a

man of reasonable caution in the belief that the action taken by him was

appropriate.” Id., at 65.

{¶ 60} Although the facts in Carter are more compelling, we cannot find that

Holley possessed a reasonable, articulable suspicion of criminal activity. Holley

testified that he stopped the van because the occupants “could have been scouting

the area for vehicles to break in, open garages or anything like that.” This

statement is consistent with his police report which was available to the trial court

and which states only the following: “On 5-25-10[,] I was on patrol in the area of

Indian Ripple and Sylvania. I noticed a blue Ford van (AXP 7508) turn south from

Indian Ripple on to Sylvania. I ran a random vehicle verification check on the

vehicle and found it came back to an address in Riverside. There have been

numerous thefts from motor vehicles in the area so I continued to follow the vehicle.

The vehicle continued to drive through the residential area, and would slow

periodically as though it was going to turn. The passengers of the vehicle started

to turn around and look back at my patrol car in a surreptitious manner. The

vehicle exited the plat and turned north onto Darst circling back towards Indian 12

Ripple. I found the actions of the vehicle and its occupants to be suspicious so I

stopped the vehicle.”

{¶ 61} According to Holley, in the course of the four to five minutes that he

followed the van before initiating the stop, he observed no traffic violations nor

indicia of criminal activity. Furthermore, the trial court’s characterization of the

area as a “high crime area” is not supported by the evidence. A rash of vehicle

thefts does not make a residential neighborhood a high crime area, which is

normally characterized by drugs, guns and other consistent criminal activity. Even

if we were persuaded of the lawfulness of the initial stop,

{¶ 62} the facts do not justify a request to go on a fishing expedition for

evidence of some prior theft. There were no additional facts gleaned from the stop

to support the officer’s initial suspicion regarding criminal activity. Thus, when a

motorist is not observed violating any traffic or other laws, and where a police

officer is not specifically looking for a particular individual or vehicle, the officer

lacks reasonable suspicion to stop and search said vehicle.

{¶ 63} Studley’s first assigned error is sustained.

{¶ 64} Studley’s second assigned error is as follows:

{¶ 65} “THE TRIAL COURT ERRED IN UPHOLDING THE SEIZURE OF

THE MARGARITA MIX AS IT EXCEEDED THE SCOPE OF THE CONSENT AND

IT WAS NOT IMMEDIATELY APPARENT TO BE CONTRABAND.”

{¶ 66} Based upon our resolution of Studley’s first assigned error, analysis of

Studley’s second assigned error is rendered moot.

{¶ 67} Judgment reversed and remanded for further proceedings consistent 13

with this court’s opinion.

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HALL, J., concurs in judgment.

GRADY, P.J., dissenting:

{¶ 68} The facts and circumstances that Officer Holley observed parallel in

their character the facts and circumstances that were observed by Detective Martin

McFadden of the Cleveland Police Department on that bright day in October of

1963 when he stopped and detained John Terry and a confederate on Detective

McFadden’s suspicion that they were preparing to engage in a “stick-up” of a retail

business. See Terry v. Ohio, (1968),

,

,

.

Further, like Detective McFadden, Officer Holley was informed by his experience,

being aware of night time vehicle break-ins in the area through which Defendant

and her associates were driving, slowing down and speeding up, during the early

hours of the morning. The reason they gave for acting as they did was insufficient

to dispel Officer Holley’s reasonable suspicions that they were casing the area for

vehicles to break into. As the Supreme Court wrote in Terry, “[i]t would have been

poor police work indeed” for Officer Holley “to have failed to investigate this

behavior further.”

.

{¶ 69} Having stopped the vehicle in which Defendant was a passenger,

Officer Holley asked the driver, Reddy, if there was anything illegal in his vehicle

and for consent to search his vehicle. Reddy consented to the search that Officer

Holley performed, which yielded an opened container of what appeared to be

intoxicating liquor. That discovery presented probable cause of a violation of R.C. 14

4301.62(B)(4). The officer’s further inquiries of Defendant Studley, a passenger in

the vehicle who appeared to be alcohol-impaired, produced an admission by

Defendant that the container was hers. Defendant was charged accordingly.

{¶ 70} The record demonstrates that Officer Holley acted not on a mere

hunch, but on the basis of specific and reasonable inferences which he was entitled

to draw from the facts based on his knowledge. The trial court correctly denied

Defendant’s motion to suppress evidence. I would affirm.

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Copies mailed to:

Betsy Deeds Amelia N. Blankenship Jon Paul Rion Hon. Beth W. Root