[Cite as State v. Skeens,

.]

COURT OF APPEALS TUSCARAWAS COUNTY, OHIO FIFTH APPELLATE DISTRICT

STATE OF OHIO : JUDGES: : Hon. W. Scott Gwin, P.J. Plaintiff - Appellant : Hon. Craig R. Baldwin, J. : Hon. Earle E. Wise, J. -vs- : : DESIRRA N. SKEENS : Case No. 2017 AP 11 0030 : Defendant - Appellee : OPINION

CHARACTER OF PROCEEDING: Appeal from the Tuscarawas County Court of Common Pleas, Case No. 2017 CR 05 0120

JUDGMENT: Reversed and Remanded

DATE OF JUDGMENT: April 24, 2018

APPEARANCES:

For Plaintiff-Appellant For Defendant-Appellee

MICHAEL J. ERNEST MARK A. PERLAKY Assistant Prosecuting Attorney Assistant Public Defender Tuscarawas County Prosecutor's Office Tuscarawas County Public Defender 125 East High Avenue 153 North Broadway St. New Philadelphia, Ohio 44663 New Philadelphia, Ohio 44663 Tuscarawas County, Case No. 2017 AP 11 0030 2

Baldwin, J.

{¶1} Plaintiff-appellant State of Ohio appeals from the October 31, 2017

Judgment Entry of the Tuscarawas County Court of Common Pleas granting the Motion

to Suppress filed by defendant-appellee Desirra N. Skeens.

STATEMENT OF THE FACTS AND CASE

{¶2} On May 19, 2017, the Tuscarawas County Grand Jury indicted appellee on

one count of possession of cocaine in violation of R.C. 2925.11(A) and (C)(4)(a), a felony

of the fifth degree. At her arraignment on June 9, 2017, appellee entered a plea of not

guilty to the charge.

{¶3} Appellee, on August 2, 2017, filed a Motion to Suppress. Appellee, in her

motion, argued that the arresting officer did not have reasonable and articulable suspicion

or probable cause to stop appellee’s vehicle and did not have reasonable and articulable

suspicion to prolong appellee’s detention in order to wait for a drug-sniffing canine to

arrive.

{¶4} A hearing on the Motion to Suppress was held on September 18, 2017. At

the hearing, Sergeant Joel Smith of the Ohio State Highway Patrol testified that he was

traveling southbound on Interstate 77 on October 25, 2016 in a marked patrol car when

he observed the vehicle in which appellee was traveling following too close to another

vehicle. Sergeant Smith stopped the vehicle and had the driver exit the same and come

over to the patrol car. He testified that he asked the man for his driver’s license and the

man told Sergeant Smith that he did not have a license because it had been suspended.

{¶5} Sergeant Smith testified that the man told him that they were coming from

Cleveland and going back to West Virginia after visiting his cousin and that “she [appellee] Tuscarawas County, Case No. 2017 AP 11 0030 3

was with him for the ride and a friend rented the car.” Transcript at 6-7. Neither appellee

nor the driver knew who had rented the car. Appellee did not know the driver’s first name,

even though she indicated that she had known him since June, and the driver did not

know appellee’s name. Sergeant Smith then called for the canine handler to the scene to

conduct a sniff of the exterior of the vehicle. Approximately seven minutes after the traffic

stop was initiated, the canine unit arrived on the scene. After the canine indicated to the

odor of narcotics coming from inside the vehicle, appellee was placed in the back seat of

the patrol car while a search of the vehicle was conducted. No narcotics were found in

the vehicle.

{¶6} On cross-examination, Sergeant Smith admitted that he did not indicate that

the driver of the vehicle in which appellee was a passenger was impaired, did not smell

any odor of narcotics in the vehicle, and did not indicate in his report anything about

nervousness.

{¶7} On redirect, Sergeant Smith testified that after the search of the vehicle was

completed, he had appellee step out of the patrol car and reviewed his in-car video. He

testified that the video recorded the driver of the vehicle asking appellee “You don’t have

anything on you do you?” and appellee responding “Well yeah, I have a few but it’s up

inside me.” Transcript at 24. After Sergeant Smith confronted appellee, she voluntarily

retrieved the cocaine from her pants.

{¶8} Following the testimony, a video of the traffic stop was marked and admitted

as an exhibit.

{¶9} The trial court, as memorialized in a Judgment Entry filed on October 31,

2017, granted the Motion to Suppress. The trial court, in its Judgment Entry, found that Tuscarawas County, Case No. 2017 AP 11 0030 4

Sergeant Smith had probable cause to make the initial traffic stop. However, the trial court

found that appellee was wrongfully detained for what the trial court estimated to be

approximately twenty to thirty minutes while Sergeant Smith viewed the video/audio

recording of appellee and the driver of the vehicle. The trial court further held that the

“[t]he surreptitious filming/recording of the Defendant in the rear seat of the Ohio State

Highway Patrol cruiser” was fundamentally unfair and violated appellee’s constitutional

rights and that the necessary warnings intended for suspects under Miranda v. Arizona,

(1966) were not provided to appellee, who was in custody.

{¶10} Appellant now appeals from the trial court’s October 31, 2017 Judgment

Entry, raising the following assignments of error on appeal:

{¶11} I. THE TRIAL COURT COMMITTED REVERSABLE (SIC) ERROR BY

SUPPRESSING STATEMENTS SUA SPONTE ON AN ISSUE NOT RAISED BY THE

PARTIES OR COURT.

{¶12} II. THE TRIAL COURT COMMITTED REVERSABLE (SIC) ERROR BY

SUPPRESSING STATEMENTS AND OTHER EVIDENCE ON THE BASIS THAT THE

APPELLEE’S CONSTITUTIONAL RIGHTS WERE VIOLATED WHILE BEING

DETAINED IN THE OHIO STATE HIGHWAY PATROL CRUISER.

I

{¶13} Appellant, in its first assignment of error, argues that the trial court

committed reversible error by granting the Motion to Suppress on an issue not raised by

the parties or the trial court.

{¶14} “ ‘It is settled law in Ohio that a motion to suppress evidence must make

clear the grounds upon which the motion is based in order that the prosecutor may Tuscarawas County, Case No. 2017 AP 11 0030 5

prepare his case and the court may know the grounds of the challenge in order to rule on

evidentiary issues at the hearing and properly dispose of the merits.’ ” State v. Byrnes,

2d Dist. Montgomery No. 25860,

, quoting Dayton v. Dabney,

,

(2d Dist. 1994), citing Xenia v. Wallace,

,

(1988). In particular, Crim.R. 47 specifies that a motion

to the trial court “shall state with particularity the grounds upon which it is made and shall

set forth the relief or order sought.” “The Supreme Court [of Ohio] has stated that ‘this

provision, in the context of the ruling case law and when applied to a motion to suppress

evidence obtained by search and seizure, requires that the prosecution be given notice

of the specific legal and factual grounds upon which the validity of the search and seizure

is challenged.’ ” (Emphasis sic.) Byrnes at ¶ 10, quoting

, quoting

. In Dabney, the court concluded that the trial court “interjecting a new issue which

was not supported by any evidence whatsoever, and basing its decision to suppress the

evidence on th[at] new issue, without giving the city the opportunity to present evidence

on the issue” “was prejudicial error to the city.”

.

{¶15} However, the trial court is not required to sit on its proverbial hands if an

issue germane to the suppression argument arises. A trial court “is free to expand the

scope of a suppression hearing beyond the issues specified in the motion to suppress ‘

so long as the matters within the expanded scope were material to the suppression

sought, and so long as the State had a reasonable opportunity to prepare itself for the

hearing.’ ” Byrnes, at ¶ 12, quoting State v. Blackburn, 2d Dist. Clark No. 3084,

(Mar. 23, 1994). Conversely, a trial court's rogue detour at a suppression hearing

does not put the State on notice of an issue to be decided.

. Tuscarawas County, Case No. 2017 AP 11 0030 6

{¶16} If a trial court grants a motion to suppress based on an issue that falls

outside the scope of the motion, the state may not have been provided with an opportunity

to adequately prepare arguments and present evidence on that issue and the trial court

would err in granting the motion to suppress on that basis. State v. Duke, 9th Dist. Lorain

No. 12CA10225, 2013–Ohio–743, ¶ 11. The question, therefore, is whether the trial court

indicated the issue it was considering, and whether the parties were given an opportunity

to prepare and present arguments on that issue. State v. Tyson, 3rd Dist. Marion No.

914–49, 2015–Ohio–3530, 41, ¶ 35.

{¶17} The trial court, in the case sub judice, stated, in part, that the Motion to

Suppress should be granted for the following reason:

{¶18} The determination of Defendant after the approximate twenty (20) minute

search of the motor vehicle in question for another approximate twenty (20) to thirty (30)

minutes during which Sgt. Smith viewed and/or listened (or both) to the surreptiously

obtained audio/video of the Defendant and her companion to determine if any evidence

of criminal conduct of either would be revealed, simply cannot be countenanced by the

undersigned, especially in light of the fact that the motor vehicle search did not result in

the discovery of any contraband in the vehicle.

{¶19} We concur with appellant that the twenty to thirty minute delay which the

trial court referred to and used in part to suppress evidence was not mentioned by

appellee in either her Motion to Suppress, during the suppression hearing or in her

memorandum in support of her Motion to Suppress. Appellee argued that Sergeant Smith

had no reason to prolong the stop of the vehicle in order to allow the drug-sniffing canine

to conduct a sniff of the vehicle. As noted by appellant, “[a] review of the appellee’s motion Tuscarawas County, Case No. 2017 AP 11 0030 7

and memorandum in support as well as the transcript in this matter does not reveal any

inquiry or any challenge to the time it took to conduct the review of the in-car video by

Sgt. Smith.”

{¶20} Based on the foregoing, we find that appellant was not put on notice that

the issue of whether or not appellee was wrongfully detained for the time during which

Sergeant Smith reviewed the in-cruiser video/audio recording of appellee and the driver

of the vehicle would be considered by the trial court and did not have an opportunity to

present evidence or legal authority as to such issue. We find that the trial court committed

reversible error by suppressing statements sua sponte on an issue not raised by the

parties or the court.

{¶21} Appellant’s first assignment of error is, therefore, sustained.

II

{¶22} Appellant, in its second assignment of error, argues that the trial court

committed reversible error by suppressing statements and other evidence on the basis

that appellee’s constitutional rights were violated while being detained in the Ohio State

Highway Patrol cruiser.

{¶23} The trial court, in its October 31, 2017 Judgment Entry, found that appellee

was in custody while in the back of the Ohio State Highway Patrol cruiser and should

have been advised of her Miranda rights, but was not. The trial court based its decision

to grant appellee’s Motion to Suppress, in part, also on such finding.

{¶24} However, as noted by appellant, issues regarding whether or not appellee’s

Miranda rights were violated were not raised by appellee in her Motion to Suppress or at Tuscarawas County, Case No. 2017 AP 11 0030 8

the hearing or by the trial court. Appellant was not given an opportunity to prepare and

present arguments on such issue.

{¶25} Appellant’s second assignment of error is, therefore, sustained.

{¶26} Accordingly, the judgment of the Tuscarawas County Court of Common

Plea is reversed and this matter is remanded to the trial court for further proceedings

consistent with this Opinion.

By: Baldwin, J.

Gwin, P.J. and

Earle Wise, J. concur.