[Cite as Brunswick v. Ware,

.]

STATE OF OHIO ) IN THE COURT OF APPEALS )ss: NINTH JUDICIAL DISTRICT COUNTY OF MEDINA )

CITY OF BRUNSWICK C.A. No. 11CA0114-M

Appellant

v. APPEAL FROM JUDGMENT ENTERED IN THE EDWARD WARE III MEDINA MUNICIPAL COURT COUNTY OF MEDINA, OHIO Appellee CASE No. 10 TRC 03428

DECISION AND JOURNAL ENTRY

Dated: December 30, 2011

CARR, Judge.

{¶1} Appellant, the City of Brunswick, appeals the judgment of the Medina Municipal

Court granting the motion to suppress filed by Edward Ware III. This Court reverses.

I.

{¶2} On May 20, 2010, police initiated a stop of Ware’s truck at 1:41 a.m. in the

parking lot of Big Lots in Brunswick, Ohio. After Ware failed several field sobriety tests, he was

charged with two counts of driving while under the influence pursuant to sections

434.01(a)(1)(A) and 434.01(a)(1)(D) of the Brunswick Codified Ordinances. Ware pleaded not

guilty to the charges. On July 7, 2010, Ware filed a motion to suppress all evidence seized as a

result of the traffic stop. A hearing on the motion was held on October 6, 2010. Subsequently,

on October 19, 2010, the trial court issued a journal entry granting the motion to suppress.

{¶3} The City filed a notice of appeal on October 21, 2010. On appeal, the City raises

one assignment of error. 2

II.

ASSIGNMENT OF ERROR

“THE MEDINA MUNICIPAL COURT ERRED IN GRANTING APPELLEE’S MOTION TO SUPPRESS EVIDENCE.”

{¶4} In its sole assignment of error, the City argues that the trial court erred in granting

Ware’s motion to suppress. This Court agrees.

{¶5} The City argues on appeal that the facts available to the officer, when viewed in

their totality, gave rise to a reasonable suspicion that Ware was in the process of committing a

theft offense. Ware argues that the officer did not have a reasonable, articulable, suspicion of

criminal activity and that the decision to stop the vehicle was based solely on a hunch.

{¶6} The Supreme Court of Ohio has held:

“Appellate review of a motion to suppress presents a mixed question of law and fact. When considering a motion to suppress, the trial court assumes the role of trier of fact and is therefore in the best position to resolve factual questions and evaluate the credibility of witnesses. Consequently, an appellate court must accept the trial court’s findings of fact if they are supported by competent, credible evidence. Accepting these facts as true, the appellate court must then independently determine, without deference to the conclusion of the trial court, whether the facts satisfy the applicable legal standard.” (Internal citations omitted.) State v. Burnside,

,

, at ¶8.

{¶7} The Fourth Amendment of the United States Constitution and Section 14, Article

I of the Ohio Constitution secure an individual’s right to be free from unreasonable searches and

seizures. A traffic stop constitutes a seizure within the meaning of the Fourth Amendment.

Whren v. United States (1996),

. However, an investigative stop of a

motorist does not violate the Fourth Amendment if the officer has a reasonable suspicion that the

individual is engaged in criminal activity. Maumee v. Weisner (1999),

,

citing Terry v. Ohio (1968),

. Before a law enforcement officer may stop a

vehicle, the officer must have a reasonable suspicion, based upon specific and articulable facts, 3

that an occupant is or has been engaged in criminal activity. State v. Gedeon (1992),

. Reasonable suspicion constitutes something less than probable cause. State v.

Carlson (1995),

. The propriety of an investigative stop must be

viewed in light of the totality of the circumstances. State v. Bobo (1988),

,

paragraph two of the syllabus.

{¶8} Officer Samuel Gagliardi of the Brunswick Police Department was the only

witness to testify at the October 6, 2010 hearing. Officer Gagliardi testified as follows. In the

early morning hours of May 20, 2010, Officer Gagliardi was driving his squad car on general

patrol duty. As he traveled southbound on Pearl Road in Brunswick, Officer Gagliardi noticed a

truck parked in the parking lot of Big Lots. Officer Gagliardi noticed that the truck, which was

dark in color, was parked in an east/west direction in the parking lot despite the fact that all the

parking spaces run north/south. The truck was parked next to pallets of mulch and soil. It was

approximately 1:41 a.m. and Big Lots was not open for business at that hour. Officer Gagliardi

testified that Big Lots generally has pallets of either mulch or soil that are stacked in the parking

lot and remain there 24 hours a day. Officer Gagliardi further testified that he is required to

patrol that parking lot as part of his duties in order to prevent possible thefts or mischievous

activity. Officer Gagliardi testified that the truck was “[p]arked in front of the store, next to the

pallets.”

{¶9} When Officer Gagliardi noticed the truck, he made a left turn onto Laurel Road

and entered the Big Lots parking lot. Officer Gagliardi testified that it was dark as he entered the

parking lot. When Officer Gagliardi drove into the parking lot in his marked cruiser, the truck

began to pull away diagonally across the parking lot without turning on its lights. The truck was 4

moving away from Officer Gagliardi’s cruiser toward an exit that would have taken it onto Pearl

Road.

{¶10} Officer Gagliardi initiated a traffic stop. The vehicle came to a stop in the middle

of the parking lot. Officer Gagliardi identified Ware as the driver of the truck. Officer Gagliardi

testified that when he approached the vehicle he observed that Ware’s eyes were bloodshot, his

speech was slurred, and there was a strong odor of alcohol emanating from his person. Officer

Gagliardi testified that Ware had a wet spot around his neck that “came down to a V probably

about halfway down his chest.” Officer Gagliardi testified that there was a female in the

passenger seat of the vehicle. When Officer Gagliardi asked Ware if he had been consuming

alcohol, Ware responded that he had “three or four beers” when he and the passenger were at a

club. Officer Gagliardi then administered several field sobriety tests, namely the horizontal gaze

nystagmus test, the one-leg stand test, and the portable breath test. Based on the results of the

tests, Officer Gagliardi placed Ware under arrest.

{¶11} On cross-examination, Officer Gagliardi was asked why he stopped Ware’s

vehicle. Officer Gagliardi responded, “Mr. Ware’s vehicle was suspicious in nature due to the

fact that the business was closed, and it was my duty to investigate to make sure that there was

no possible theft offense occurring.” Officer Gagliardi testified that he did not have reason to

believe that Ware committed a traffic offense, although Ware had neglected to turn on his

headlights when he attempted to leave the parking lot despite the fact it was dark. When asked if

he had any reason to believe that Ware had committed a criminal act, however, Officer Gagliardi

responded in the affirmative. Officer Gagliardi testified that there was “reasonable enough cause

to believe that there was a -- a crime in progress or possibly to be in progress.” When asked to

elaborate on what he observed that night, Officer Gagliardi testified, “The Defendant was 5

parked. You could tell that the car was occupied. I noticed he tapped the brake one time, and

making the back taillights light up, you know, adding to the fact that there was a person inside

the car; parking in the wrong direction.” Defense counsel asked a series of questions relating to

how Big Lots displayed their hours of operation. Officer Gagliardi testified that Big Lots’ hours

are posted on the front door of the store but he had never seen anyone walk up to look at the

store hours in the middle of the night. Officer Gagliardi further testified that Ware was not

parked in a direction that faced the front doors where the store hours were posted. Officer

Gagliardi indicated that he had not received a report regarding any criminal activity in that area

on that particular night. On redirect examination, Officer Gagliardi clarified that he had received

reports of thefts on prior nights.

{¶12} The trial court concluded that there was no legal basis for the initial detention of

the vehicle. The trial court noted that because Ware was not on a street or highway, he was not

required to turn on his headlights in the parking lot and, therefore, there was no evidence of a

traffic violation. The trial court further concluded that Officer Gagliardi did not have a

reasonable, articulable suspicion of any imminent criminal activity. The trial court also found

that the police officer could not have stopped the vehicle as part of a community caretaking

function because there was no evidence that Officer Gagliardi had a reasonable belief that the

driver of the vehicle needed emergency assistance.

{¶13} Based upon the evidence presented at the hearing on the motion to suppress, we

conclude that Officer Gagliardi had a reasonable suspicion, based on specific and articulable

facts, that Ware was in the process of committing a criminal act. This Court has previously held

that police officers had reasonable suspicion to justify an investigatory stop of a defendant’s

truck when the officers observed the defendant driving behind a closed business at 3:00 a.m. 6

with the headlights of his truck extinguished. Cuyahoga Falls v. Pollack, 9th Dist. No. 23988,

. In this case, Officer Gagliardi observed Ware’s truck in the Big Lots’ parking

lot 1:41 a.m. The store was not open for business as it was the middle of the night. The truck’s

headlights were extinguished and it was not parked in a parking space. Rather, Ware had pulled

his truck up next to pallets of soil and mulch which are left outside overnight. Officer Gagliardi

testified that there had been a history of theft in that area. A truck, by its very nature, is a vehicle

designed to transport cargo. While the lights of the truck were extinguished, Officer Gagliardi

knew the truck was occupied because he observed the driver tap the brakes. When Officer

Gagliardi entered the parking lot in his cruiser, Ware immediately attempted to exit the parking

lot by driving diagonally across the lot without turning on his headlights. These circumstances,

when viewed in their totality, constituted reasonable, articulable facts upon which Officer

Gagliardi could base his decision to stop the vehicle.

{¶14} The City’s sole assignment of error is sustained.

III.

{¶15} The City’s assignment of error is sustained. The judgment of the Medina

Municipal Court is reversed and the cause remanded for further proceedings consistent with this

decision.

Judgment reversed, and cause remanded.

There were reasonable grounds for this appeal. 7

We order that a special mandate issue out of this Court, directing the Medina Municipal

Court, County of Medina, State of Ohio, to carry this judgment into execution. A certified copy

of this journal entry shall constitute the mandate, pursuant to App.R. 27.

Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the

period for review shall begin to run. App.R. 22(E). The Clerk of the Court of Appeals is

instructed to mail a notice of entry of this judgment to the parties and to make a notation of the

mailing in the docket, pursuant to App.R. 30.

Costs taxed to Appellee.

DONNA J. CARR FOR THE COURT

MOORE, J. CONCURS

BELFANCE, P. J. DISSENTS, SAYING:

{¶16} I respectfully dissent. The Fourth Amendment to the United States Constitution

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.”

{¶17} Thus, absent a warrant and probable cause, citizens are protected from the

unconstrained exercise of police discretion in effecting a seizure or search of their person or their

property. In Terry v. Ohio (1968),

, the United States Supreme Court created a narrow 8

exception to the requirement of probable cause prior to effecting a search or seizure. In Terry, the

Court determined that a police officer may momentarily stop and frisk a person where, based on

specific facts, the officer concludes that the person has committed a crime or is about to commit

a crime and may be armed and dangerous.

. The Court emphasized that it had created

very narrowly drawn authority to search for weapons without a warrant.

{¶18} In determining whether a temporary seizure without probable cause is itself

permissible, Terry established that the officer must have reasonable articulable suspicion of

criminal activity based on “specific and articulable facts” and “rational inferences from those

facts[.]”

. This initial inquiry must be satisfied in order to justify any detention at its

inception.

{¶19} In this case, the officer observed a vehicle in the parking lot at 1:41 a.m. The

officer did not observe any specific activity of the vehicle or its occupants. When the vehicle

began to move, the officer stopped the vehicle. The officer admitted that he stopped the vehicle

based upon a “hunch.”

{¶20} The trial court found that the officer had not observed any traffic violations and

that the officer did not have any belief that the defendant was not validly licensed or that the

vehicle was not properly registered. The court further found that there had been no reports of

criminal activity in the parking lot during the evening and morning in question. Further,

although the officer alluded to reports of criminal activity in the past, the trial court found that

“[n]o evidence was submitted as to the nature or location of businesses involved in these non-

specific reports.” The trial court thus concluded that the officer did not witness any traffic

violation and did not otherwise have a reasonable and articulable suspicion of any imminent

criminal activity. 9

{¶21} At a hearing on a motion to suppress, the trial court serves as the trier of fact and

is in the best position to weigh the evidence and resolve factual questions in part through

evaluating the credibility of the witnesses. Accordingly, this Court must give deference to the

factual findings of the trial court if they are supported by competent, credible evidence. State v.

Burnside,

,

at ¶8. The trial court’s factual findings are

supported by competent credible evidence. Based upon those findings, it is apparent that the

officer did not have reasonable suspicion to conduct a seizure as there were no specific objective

facts that Mr. Ware was involved or about to be involved in criminal activity. Brown v. Texas

(1979),

. See, also, Terry,

(concluding reasonable

suspicion existed after officer observed individuals casing a business for period of time). Here,

the officer observed a car parked in a lot and nothing more. There could have been many

reasons why a man and a woman would be parked in a parking lot. The fact that the officer

might have thought it suspicious that someone was stopped in the parking lot at 1:41 a.m.

certainly may have warranted further surveillance, however, a seizure is not constitutionally

permissible simply because circumstances appear suspicious or an officer has a hunch about the

situation. See Brown,

(concluding that a stop of a suspicious looking

individual in a bad neighborhood was not constitutionally permissible because even though the

situation looked suspicious, the officer was unable to point to any facts that appellant was

involved in criminal conduct); Delaware v. Prouse (1979),

(concluding that

random stop of a vehicle was not permissible); State v. Paschal,

, 2006-

Ohio-5331, at ¶¶20-22 (concluding that the stop of a vehicle was impermissible where stop was

effectuated based upon the officer’s hunch). 10

{¶22} The United States and Ohio Constitutions secure the right of people to freely

travel on streets and roadways at any hour of the day or night. We live in a society where many

people work nighttime hours and many stores and restaurants are open 24 hours daily. As

emphasized by the United States Supreme Court, “people are not shorn of all Fourth Amendment

protection when they step from their homes onto the public sidewalks. Nor are they shorn of

those interests when they step from the sidewalks into their automobiles.” Prouse,

.

{¶23} The trial court’s findings of fact were supported by competent, credible evidence

and it properly applied the law to those facts. Accordingly, because the officer did not possess a

reasonable articulable suspicion of possible criminal activity based upon specific facts as

opposed to a hunch, I would affirm the decision of the trial court.

APPEARANCES:

J. MATTHEW LANIER, Attorney at Law, for Appellant.

WILLIAM LEFAIVER. Attorney at Law, for Appellee.