[Cite as State v. Jones,

.]

IN THE COURT OF APPEALS OF OHIO FOURTH APPELLATE DISTRICT WASHINGTON COUNTY

STATE OF OHIO, : Case No. 11CA13 : Plaintiff-Appellee, : : DECISION AND v. : JUDGMENT ENTRY : JEFFREY J. JONES, : : RELEASED 03/16/12

Defendant-Appellant. : ______________________________________________________________________ APPEARANCES:

Rolf Baumgartel, Marietta, Ohio, for appellant.

Roland W. Riggs, III, Marietta City Law Director, and Daniel W. Everson, Marietta City Assistant Law Director, Marietta, Ohio, for appellee. ______________________________________________________________________ Harsha, J.

{¶1} A jury found Jeffrey Jones guilty of operating a vehicle under the influence

of alcohol, a drug of abuse, or a combination of them (“OVI”). Jones now appeals the

trial court’s denial of his motion to suppress evidence obtained after a patrolman

approached his stationary vehicle and opened the driver’s side door, allowing the officer

to smell alcohol in the vehicle. Jones claims the officer lacked reasonable suspicion to

approach the vehicle and open his door. However, the patrolman did not need any

justification to approach the vehicle and knock on the window in an effort to speak to

Jones because this type of contact constitutes a “consensual encounter.” Moreover, the

patrolman was responding to a report of a possible drunk driver in a red pickup truck

outside a grocery store and found Jones at that location with his head slumped down,

asleep behind the wheel with the headlights on and the key in the ignition. And when Washington App. No. 11CA13 2

the patrolman knocked on the window to wake Jones, he “looked to be confused,

dazed.” Based on the totality of these circumstances, we believe the evidence shows

that the patrolman had a reasonable, articulable suspicion that Jones had committed an

OVI offense and was therefore justified in detaining him by opening the driver’s side

door. Accordingly, we affirm the trial court’s judgment.

I. Facts

{¶2} Jones was charged in a complaint with one count of OVI. He filed a

motion to suppress all evidence obtained as a result of the “stop” at issue. At the

hearing on the motion, the State presented the testimony of Patrolman Ralph Newell of

the Marietta Police Department. Newell testified that on September 19, 2010, he was

dispatched to Food For Less around 11:20 p.m. based on a report of a possible drunk

driver in a small red pickup truck. Newell spotted the truck near the front door of the

store, approached it and saw the key was in the ignition and the headlights were on but

that the vehicle was not running. According to Newell, Jones’ head was “slumped

down” and he was “asleep behind the wheel.” After Newell knocked on the window “to

see what was going on,” Jones woke up. Newell then opened the door to check Jones’

condition and smelled alcohol. Newell explained that he opened the door instead of

asking Jones to open it because “[h]e just looked to be confused, dazed” as he just

woke up.

{¶3} The court denied the motion to suppress, finding that:

Based on Ptl. Newell’s testimony, the Court found that it was 11:21 pm, that Defendant was slumped over the wheel with his headlights on and the key in the ignition, and that Ptl. Newell had been dispatched to that location due to a report of a suspected drunk driver in a red truck. Based on that report, Ptl. Newell had the right to approach the red truck that he found the defendant sitting in. Based on the observations made by Washington App. No. 11CA13 3

Ptl. Newell when he first approached, and the confused/dazed look on the defendant’s face after the officer knocked on his window, Ptl. Newell did not exceed his authority in opening the door to speak to the defendant.

{¶4} Subsequently, a jury found Jones guilty of OVI in violation of R.C.

4511.19(A)(2). After sentencing, Jones filed this appeal.

II. Assignment of Error

{¶5} Jones assigns one error for our review:

THE COURT BELOW ERRED IN DENYING THE DEFENDANT’S MOTION TO SUPPRESS ON THE GROUNDS THAT THE ARRESTED OFFICER LACKED REASONABLE ARTICULABLE SUSPICION THAT THE DEFENDANT HAD COMMITTED A VIOLATION OF LAW.

III. Motion to Suppress

A. Standard of Review

{¶6} Our review of a trial court’s decision on a motion to suppress presents a

mixed question of law and fact. State v. Roberts,

,

,

, citing State v. Burnside,

, 2003-Ohio-

5372,

. When considering a motion to suppress, the trial court acts

as the trier of fact and is in the best position to resolve factual questions and evaluate

witness credibility.

Accordingly, we defer to the trial court’s findings of fact if they

are supported by competent, credible evidence. State v. Landrum (2000),

,

. Accepting those facts as true, we must

independently determine whether the trial court reached the correct legal conclusion in

analyzing the facts of the case. Roberts at ¶100, citing

.

B. Did Newell Act Reasonably?

{¶7} In his sole assignment of error, Jones contends that the trial court erred

when it denied his motion to suppress. Jones’ brief is vague about what actions of Washington App. No. 11CA13 4

Newell he specifically takes issue with. However, based on the transcript from the

motion to suppress hearing, it is apparent that Jones believes that Newell lacked

reasonable suspicion to approach his vehicle and open the driver’s side door, which

allowed Newell to smell alcohol in his vehicle. At the hearing, Jones acknowledged that

if these actions were legally appropriate, Newell would have had reasonable suspicion

to conduct an OVI investigation once he smelled alcohol. The State argues that Newell

had reasonable suspicion to detain Jones. The State does not claim that Newell’s

actions were justified because he was acting in his role as a community caretaker, i.e.

Newell had reasonable suspicion to believe Jones needed assistance. See generally

City of Geneva v. Fende, Ashtabula App. No. 2009-A-0023,

, at ¶¶15-

19.

{¶8} The Fourth Amendment to the United States Constitution and Section 14,

Article I of the Ohio Constitution guarantee the right of the people to be free from

unreasonable searches and seizures. See State v. Orr,

, 2001-

Ohio-50,

. Because these provisions contain virtually identical

language, the Supreme Court of Ohio has interpreted them as affording the same level

of protection.

“Once the defendant demonstrates that he was subjected to a

warrantless search or seizure, the burden shifts to the State to establish that the

warrantless search or seizure was constitutionally permissible.” State v. Hansard,

Scioto App. No. 07CA3177,

, citing Maumee v. Weisner,

, 297,

, 720 N.E .2d 507 and Xenia v. Wallace (1988),

,

, at paragraph two of the syllabus. The State does not

dispute the fact that Newell did not have a warrant in this case. Washington App. No. 11CA13 5

{¶9} The Supreme Court of the United States recognizes three categories of

police-citizen interactions: “(1) consensual encounters, (2) investigative or ‘Terry’ stops,

and (3) arrests.” State v. Travis, Scioto App. No. 06CA3098,

,

citing Florida v. Royer (1983),

,

,

and United States v. Mendenhall (1980),

,

,

. “Police may lawfully initiate a consensual encounter without probable cause or a

reasonable, articulable suspicion of criminal activity.” Id. at ¶10, citing Mendenhall at

556. An encounter is consensual when an officer approaches a person in a public

place, engages the person in conversation, requests information, and the person is free

to not answer and walk away. In re Nesser, Ross App. No. 00CA2551, 2000-Ohio-

1949,

, at *3. “More pertinently, the mere approach and questioning

of persons seated within parked vehicles does not constitute a seizure * * *,” i.e. it is a

consensual encounter. State v. Turley (Mar. 6, 1997), Lawrence App. No. 96CA20,

, at *2, citing 3 LaFave, Search and Seizure (2 Ed. 1987) 408-409 and

415-416, Section 9.2(b). Thus, Newell could lawfully approach Jones’ parked vehicle

and knock on the window to rouse him without any specific justification because such

an encounter does not implicate the Fourth Amendment.

{¶10} However, the constitutional guarantees regarding seizures are implicated

if “the police officer has by either physical force or show of authority restrained the

person’s liberty so that a reasonable person would not feel free to decline the officer’s

requests or otherwise terminate the encounter.” In re Nesser at *3, quoting State

v.Taylor (1995),

,

. “Once a person’s liberty has

been restrained, the encounter loses its consensual nature” and becomes either an Washington App. No. 11CA13 6

investigatory detention/Terry stop or a seizure that is the equivalent of an arrest. See

Taylor at 748 -749.

{¶11} The investigatory detention “is more intrusive than a consensual

encounter, but less intrusive than a formal custodial arrest. The investigatory detention

is limited in duration and purpose and can only last as long as it takes a police officer to

confirm or to dispel his suspicions. A person is seized under this category when, in

view of all the circumstances surrounding the incident, by means of physical force or

show of authority a reasonable person would have believed that he was not free to

leave or is compelled to respond to questions.”

(internal citation omitted). “A

seizure is equivalent to an arrest when (1) there is an intent to arrest; (2) the seizure is

made under real or pretended authority; (3) it is accompanied by an actual or

constructive seizure or detention; and (4) it is so understood by the person arrested.”

, citing State v. Barker (1978),

,

, at

syllabus.

{¶12} Once Newell opened Jones’ door and effectively restrained his freedom of

movement, the encounter became an investigatory detention but had not reached the

level of an arrest. See generally State v. Brown,

, 2009-Ohio-

3804,

. In State v. Abernathy, Scioto App. No. 07CA3160, 2008-

Ohio-2949, at ¶¶22-24 (internal citations and quotation marks omitted), we outlined the

requirements for a constitutionally permissible investigatory detention or stop:

The investigative stop exception to the Fourth Amendment warrant requirement allows a police officer to stop and briefly detain an individual if the officer possesses a reasonable suspicion, based upon specific and articulable facts, that criminal activity may be afoot. To justify an investigative stop, the officer must be able to articulate specific facts that would warrant a person of reasonable caution in the belief that the person Washington App. No. 11CA13 7

stopped has committed or is committing a crime.

A valid investigative stop must be based upon more than a mere hunch that criminal activity is afoot. Reviewing courts should not, however, demand scientific certainty from law enforcement officers. Rather, a reasonable suspicion determination must be based on commonsense judgments and inferences about human behavior. Thus, the likelihood of criminal activity need not rise to the level required for probable cause, and it falls considerably short of satisfying a preponderance of the evidence standard.

A court that is determining whether a law enforcement officer possessed reasonable suspicion to stop an individual must examine the totality of the circumstances. The totality of the circumstances approach allows officers to draw on their own experience and specialized training to make inferences from and deductions about the cumulative information available to them that might well elude an untrained person. Thus, when a court reviews an officer’s reasonable suspicion determination, a court must give due weight to factual inferences drawn by resident judges and local law enforcement officers.

{¶13} Moreover, an informant’s tip may provide an officer with reasonable

suspicion. Id. at ¶26. “When officers base reasonable suspicion upon an informant’s

tip, the Ohio Supreme Court has identified several factors including ‘the informant’s

veracity, reliability and basis of knowledge’ that are considered to be ‘highly relevant in

determining the value of [the informant’s] report.’” Id., quoting Maumee, supra, at 299.

“Although the distinctions between these categories are somewhat blurred, courts have

generally identified three classes of informants: the anonymous informant, the known

informant (someone from the criminal world who has provided previous reliable tips),

and the identified citizen informant.” Id., quoting Maumee at 300. As the Court

explained in Maumee at 300:

While the United States Supreme Court discourages conclusory analysis based solely upon these categories, insisting instead upon a totality of the circumstances review, it has acknowledged their relevance to an informant’s reliability. The court has observed, for example, that an anonymous informant is comparatively unreliable and his tip, therefore, Washington App. No. 11CA13 8

will generally require independent police corroboration. Alabama v. White [1990], 496 U.S. [325,] 329 * * *. The court has further suggested that an identified citizen informant may be highly reliable and, therefore, a strong showing as to the other indicia of reliability may be unnecessary: “[I]f an unquestionably honest citizen comes forward with a report of criminal activity-which if fabricated would subject him to criminal liability-we have found rigorous scrutiny of the basis of his knowledge unnecessary.” Illinois v. Gates [1983], 462 U.S. [213,] 233-234 * * *.

{¶14} Although the State contends that an identified citizen informant notified

police about the possible drunk driver at Food For Less, the State bases this argument

on testimony elicited at Jones’ trial – not at the hearing on the motion to suppress. At

the hearing, the State presented no evidence about who called in the tip, so we must

treat the informant as anonymous. Newell testified that this informant told police about

a possible drunk driver in a small red pickup truck at the grocery store. Once Newell

arrived at the scene, he was able to corroborate the fact that there was a small red

pickup truck at that location. Although Newell did not actually observe Jones operate

the vehicle, he saw Jones with his head “slumped down,” asleep behind the wheel with

the key in the ignition and the headlights on. And when Newell knocked on the window

to wake Jones up, he “looked to be confused, dazed.” Based on the totality of these

circumstances, we believe the evidence shows that the Newell had a reasonable,

articulable suspicion that Jones had driven under the influence of alcohol and/or a drug

of abuse, parked the vehicle, and passed out behind the wheel. Therefore, Newell was

justified in conducting an investigatory detention, and the trial court properly overruled

Jones’ motion to suppress.

{¶15} Jones implies that Newell lacked a reasonable, articulable suspicion to

open his car door because Newell “acknowledged that he had witnessed no violation of

law and would not have stopped Defendant had Mr. Jones driven away. Rather, the Washington App. No. 11CA13 9

officer testified that he would have followed Defendant’s vehicle first.” (Appellant’s Br.

4). Jones appears to construe this testimony to mean Newell did not believe he had

any basis to detain Jones. And Jones essentially contends that we should find a lack of

reasonable suspicion based on Newell’s subjective belief. However, “[r]eviewing the

totality of the circumstances to determine whether an officer had reasonable suspicion

to justify an investigative stop or detention is an objective, rather than subjective,

inquiry.” State v. Newrones, Portage App. No. 2003-P-0095,

,

citing State v. Robinette,

,

,

, at

paragraph one of the syllabus. Thus even if we agreed with Jones’ assessment of

Newell’s subjective belief, it would be irrelevant to our totality of the circumstances

analysis.

{¶16} Accordingly, we overrule Jones’ sole assignment of error and affirm the

trial court’s judgment.

JUDGMENT AFFIRMED. Washington App. No. 11CA13 10

JUDGMENT ENTRY

It is ordered that the JUDGMENT IS AFFIRMED and that Appellant shall pay the costs.

The Court finds there were reasonable grounds for this appeal.

It is ordered that a special mandate issue out of this Court directing the Marietta Municipal Court to carry this judgment into execution.

IF A STAY OF EXECUTION OF SENTENCE AND RELEASE UPON BAIL HAS BEEN PREVIOUSLY GRANTED BY THE TRIAL COURT OR THIS COURT, it is temporarily continued for a period not to exceed sixty days upon the bail previously posted. The purpose of a continued stay is to allow Appellant to file with the Supreme Court of Ohio an application for a stay during the pendency of proceedings in that court. If a stay is continued by this entry, it will terminate at the earlier of the expiration of the sixty day period, or the failure of the Appellant to file a notice of appeal with the Supreme Court of Ohio in the forty-five day appeal period pursuant to Rule II, Sec. 2 of the Rules of Practice of the Supreme Court of Ohio. Additionally, if the Supreme Court of Ohio dismisses the appeal prior to expiration of sixty days, the stay will terminate as of the date of such dismissal.

A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. Exceptions.

Kline, J. & McFarland, J.: Concur in Judgment and Opinion.

For the Court

BY: ________________________ William H. Harsha, Judge

NOTICE TO COUNSEL

Pursuant to Local Rule No. 14, this document constitutes a final judgment entry and the time period for further appeal commences from the date of filing with the clerk.