[Cite as State v. Moiduddin,

.]

IN THE COURT OF APPEALS OF OHIO THIRD APPELLATE DISTRICT UNION COUNTY

STATE OF OHIO,

PLAINTIFF-APPELLANT, CASE NO. 14-18-15

v.

MOHAMMED MOIDUDDIN, OPINION

DEFENDANT-APPELLEE.

Appeal from Union County Common Pleas Court Trial Court No. 2017 CR 0238

Judgment Reversed and Cause Remanded

Date of Decision: September 3, 2019

APPEARANCES:

Terry L. Hord for Appellant

Gary D. Andorka for Appellee Case No. 14-18-15

PRESTON, J.

{¶1} Plaintiff-appellant, the State of Ohio, appeals the July 18, 2018

judgment of the Union County Court of Common Pleas granting the motion to

suppress evidence of defendant-appellee, Mohammed Moiduddin (“Moiduddin”),

and dismissing the indictment against him. For the reasons that follow, we reverse.

{¶2} This case stems from a stop of an automobile on US 33 in Union

County, Ohio. (Doc. No. 36). In the early morning hours of September 3, 2017,

Trooper Dorian Byers (“Trooper Byers”) of the Ohio State Highway Patrol observed

a vehicle traveling eastbound on US 33 at a low rate of speed. (Id.); (Apr. 5, 2018

Tr. at 32). After pacing the vehicle at a slow speed for a period of time, Trooper

Byers activated his overhead lights and effected a stop of the vehicle. (Doc. No.

36). On approaching the passenger side of the vehicle, Trooper Byers noticed that

the driver, Moiduddin, displayed indicators of intoxication. (Apr. 5, 2018 Tr. at 30-

31). Trooper Byers then asked Moiduddin to exit the vehicle and proceeded to

subject him to field sobriety testing. (Id. at 31-33). Although a portable breath test

failed to detect the presence of alcohol in Moiduddin’s system, Moiduddin’s

performance on a number of the field sobriety tests administered by Trooper Byers

was unsatisfactory, which prompted Trooper Byers to arrest him on suspicion of

operating a vehicle under the influence of drugs. (Id. at 36-37); (Defendant’s Ex.

B). Thereafter, while inventorying the contents of Moiduddin’s vehicle, Trooper

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Byers discovered a small plastic bag filled with a white, powdery substance and a

separate black bag with a label that read “Analytical Sample.” (Apr. 5, 2018 Tr. at

39-40); (Defendant’s Ex. B). Chemical analyses later revealed that the bags

contained substances that are substantially structurally similar to 4-

methoxymethamphetamine and phencyclidine. (State’s Ex. 1).

{¶3} On October 30, 2017, the Union County Grand Jury indicted

Moiduddin on three counts: Count One of operating a vehicle under the influence

of a drug of abuse in violation of R.C. 4511.19(A)(1)(a), (G)(1)(a), a first-degree

misdemeanor, and Counts Two and Three of aggravated possession of drugs in

violation of R.C. 2925.11(A), (C)(1)(a), fifth-degree felonies. (Doc. No. 1). On

November 29, 2017, Moiduddin appeared for arraignment and pleaded not guilty to

the counts of the indictment. (Doc. No. 7).

{¶4} On January 31, 2018, Moiduddin filed a motion to suppress evidence.

(Doc. No. 18). In support of his motion, Moiduddin argued that his rights under the

Fourth Amendment to the United States Constitution and Article I, Section 14 of

the Ohio Constitution were violated when Trooper Byers stopped his vehicle. (Id.).

In particular, Moiduddin contended that Trooper Byers did not have probable cause

or reasonable suspicion to stop his vehicle for a violation of R.C. 4511.22, Ohio’s

slow-speed statute. (Id.).

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{¶5} A hearing on Moiduddin’s motion to suppress was held on April 5,

2018. (See Apr. 5, 2018 Tr. at 1). On April 12, 2018, Moiduddin filed his post-

suppression-hearing brief. (Doc. No. 31). On April 20, 2018, the State filed its

response to Moiduddin’s post-suppression-hearing brief. (Doc. No. 34). That same

day, the State filed an amended response to Moiduddin’s post-suppression-hearing

brief. (Doc. No. 35).

{¶6} On July 18, 2018, the trial court granted Moiduddin’s motion to

suppress evidence. (Doc. No. 36). Specifically, the trial court concluded that

Trooper Byers did not have probable cause or reasonable suspicion to stop

Moiduddin for a violation of R.C. 4511.22. (Id.). The trial court also concluded

that the stop of Moiduddin’s vehicle was not permissible under the community

caretaking exception to the Fourth Amendment’s warrant requirement. (Id.).

Finally, after granting Moiduddin’s suppression motion, the trial court also

dismissed the indictment. (Id.).

{¶7} On August 17, 2018, the State filed a notice of appeal. (Doc. No. 37).

It raises one assignment of error for our review.

Assignment of Error

The trial court failed to apply the law of community- caretaking/emergency-aid function to the facts that exist in the hearing on the motion to suppress evidence and then based on the suppression of the evidence the trial court sua sponte dismissed the case in its entirety.

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{¶8} In its assignment of error, the State argues that the trial court erred by

granting Moiduddin’s motion to suppress evidence. It further argues that the trial

court erred by sua sponte dismissing the indictment against Moiduddin. With

respect to the trial court’s grant of Moiduddin’s motion to suppress evidence, the

State notes that Trooper Byers was reasonably concerned for Moiduddin’s well-

being because of the unusually slow speed at which Moiduddin was operating his

vehicle. Specifically, the State asserts that Trooper Byers was concerned that

Moiduddin’s vehicle may have been mechanically impaired or that Moiduddin was

suffering from a “medical episode.” (Appellant’s Brief at 11). Furthermore, the

State notes that Trooper Byers was also concerned that Moiduddin and other

motorists on the highway were imperiled by the presence of Moiduddin’s slow-

moving vehicle in fast-moving traffic. (Id. at 11-14). The State argues that, given

these concerns, Trooper Byers’s stop of Moiduddin’s vehicle was constitutionally

valid because Trooper Byers was exercising a “community caretaking” function

when he stopped Moiduddin’s vehicle. (Id. at 10-15). Regarding its contention that

the trial court erred by sua sponte dismissing the indictment, the State argues that

because the dismissal was apparently based on the trial court’s supposedly

erroneous decision to grant Moiduddin’s motion to suppress, its decision to dismiss

the indictment was also erroneous. (Id. at 5-6). We turn first to the State’s argument

that the trial court erred by granting Moiduddin’s motion to suppress, followed by

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the State’s argument that the trial court erred by sua sponte dismissing the

indictment.

{¶9} “Appellate review of a motion to suppress presents a mixed question of

law and fact.” State v. Burnside,

,

, ¶ 8. At a

suppression hearing, the trial court assumes the role of trier of fact and, as such, is

in the best position to evaluate the evidence and the credibility of witnesses.

See

State v. Carter,

(1995). When reviewing a ruling on a

motion to suppress, “an appellate court must accept the trial court’s findings of fact

if they are supported by competent, credible evidence.” Burnside at ¶ 8, citing State

v. Fanning,

(1982). With respect to the trial court’s conclusions of

law, however, our standard of review is de novo, and we must independently

determine whether the facts satisfy the applicable legal standard.

citing State v.

McNamara,

(4th Dist. 1997).

{¶10} The Fourth Amendment to the United States Constitution, as applied

to the states through the Fourteenth 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,

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supported by Oath or affirmation, and particularly describing the

place to be searched, and the persons or things to be seized.

Furthermore, Article I, Section 14 of the Ohio Constitution provides:

The right of the people to be secure in their persons, houses, papers,

and possessions, against unreasonable searches and seizures shall not

be violated; and no warrant shall issue, but upon probable cause,

supported by oath or affirmation, particularly describing the place to

be searched, and the person and things to be seized.

“Historically, the protections afforded by Article I, Section 14 of the Ohio

Constitution have been construed as coextensive with the protections of the Fourth

Amendment of the United States Constitution,” with limited exceptions. State v.

Box, 10th Dist. Franklin No. 16AP-371,

, ¶ 17, citing State v.

Geraldo,

(1981), State v. Robinette,

(1997), and State v. Jones,

(2000). See, e.g., State v.

Brown,

,

, ¶ 23 (“Article I, Section 14 of the

Ohio Constitution affords greater protection than the Fourth Amendment against

searches and seizures conducted by members of law enforcement who lack authority

to make an arrest.”). “‘The primary purpose of the Fourth Amendment is to impose

a standard of reasonableness upon the exercise of discretion by law enforcement

officers in order to “safeguard the privacy and security of individuals against

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arbitrary [governmental] invasions.”’” State v. Kerr, 3d Dist. Allen No. 1-17-01,

, quoting State v. Carlson,

(9th

Dist. 1995), quoting Delaware v. Prouse,

,

(1979). “‘The

Fourth Amendment does not proscribe all state-initiated searches and seizures; it

merely proscribes those which are unreasonable.’”

quoting Florida v. Jimeno,

,

(1991), citing Illinois v. Rodriguez,

,

(1990). “Thus, ‘[t]he touchstone of the Fourth Amendment is

reasonableness.’”

quoting

.

{¶11} In this case, Trooper Byers’s stop of Moiduddin’s vehicle potentially

implicates the Fourth Amendment’s protections against unreasonable searches and

seizures. “Temporary detention of individuals during the stop of an automobile by

the police, even if only for a brief period and for a limited purpose, constitutes a

‘seizure’ of ‘persons’ within the meaning” of the Fourth Amendment. Whren v.

United States,

,

(1996), citing

, United States v. Martinez-Fuerte,

,

(1976),

and United States v. Brignoni-Ponce,

,

(1975).

Accordingly, “[a]n automobile stop is * * * subject to the constitutional imperative

that it not be ‘unreasonable’ under the circumstances.” Id. at 810. While probable

cause to believe that a motorist has committed a crime is a “complete justification

for a traffic stop,” a traffic stop need not be supported by probable cause to satisfy

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the Fourth Amendment’s reasonableness requirement. State v. Mays,

,

, ¶ 23. Rather, a traffic stop is reasonable, and thus

constitutionally permissible, if a law enforcement officer has “a reasonable and

articulable suspicion that a motorist has committed, is committing, or is about to

commit a crime,” including a traffic violation. Id. at ¶ 7, citing Prouse at 663 and

Berkemer v. McCarty,

,

(1984), quoting Brignoni-

Ponce at 881; State v. Smith, 10th Dist. Franklin No. 13AP-592,

.

{¶12} “The Supreme Court of Ohio has defined ‘reasonable articulable

suspicion’ as ‘specific and articulable facts which, taken together with rational

inferences from those facts, reasonably warrant the intrusion [upon an individual’s

freedom of movement].’” State v. Smith, 3d Dist. Marion No. 9-17-05, 2017-Ohio-

5845, ¶ 9, quoting State v. Bobo,

(1988), quoting Terry v.

Ohio,

,

(1968). “‘Reasonable suspicion entails some

minimal level of objective justification for making a stop—that is, something more

than an inchoate and unparticularized suspicion or “hunch,” but less than the level

of suspicion required for probable cause.’” Kerr at ¶ 15, quoting State v. Ramos,

,

(2d Dist.), quoting State v. Jones,

(2d Dist. 1990), citing

. “‘The “reasonable

and articulable suspicion” analysis is based on the collection of factors, not on the

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individual factors themselves.’” (Emphasis sic.) Smith,

,

quoting Mays at ¶ 12, quoting State v. Batchili,

, 2007-Ohio-

2204, ¶ 19. “‘[T]hese circumstances are to be viewed through the eyes of the

reasonable and prudent police officer on the scene who must react to events as they

unfold.’” Kerr at ¶ 16, quoting State v. Andrews,

(1991),

citing United States v. Hall,

(D.C.Cir. 1976) and State v. Freeman,

(1980).

{¶13} With respect to the circumstances surrounding Trooper Byers’s stop

of Moiduddin’s vehicle, the trial court made the following findings of fact:

At 4:09 a.m. on the morning of September 3, 2017, Trooper Byers was

on stationary patrol on US 33 near milepost 18 facing eastbound

traffic when he observed [Moiduddin’s] vehicle travelling at a speed

which he estimated to be 45 mph. Trooper Byers asked Trooper

Austin to clock the vehicle and Trooper Austin clocked the vehicle by

laser at 35 mph. The speed limit in that area was 70 mph. There was

no posted slow speed limit. Trooper Byers pulled out and fell in

behind the vehicle for a pace clock of the vehicle. He testified that he

did not recall the vehicle’s speed as a result of the pace clock. The

vehicle was traveling in the right hand (slow) lane and the vehicle

never strayed from its marked lane * * *. The vehicle’s slow speed

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caused Trooper Byers to activate his lights. Trooper Byers testified

that when he activated his lights, the vehicle pulled over immediately.

The trooper observed the traffic in the area to be light. There was no

testimony that [Moiduddin’s] vehicle was blocking or impeding the

flow of any traffic.

(Doc. No. 36). In addition, the trial court found that “there was no showing that

[Moiduddin] committed any other traffic infraction * * *.” (Id.). Competent,

credible evidence supports the trial court’s factual findings concerning Trooper

Byers’s stop of Moiduddin’s vehicle. See State v. Craw, 3d Dist. Mercer No. 10-

17-09,

, citing State v. Thompson, 7th Dist. Jefferson Nos. 98

JE 28 and 98 JE 29,

, *5-6 (Jan. 24, 2001).

{¶14} At the April 5, 2018 suppression hearing, Trooper Byers testified that

he was on patrol on September 3, 2017 at approximately 4:09 a.m. when a vehicle

caught his attention because it “was traveling at an unusual[,] * * * low rate of

speed.” (Apr. 5, 2018 Tr. at 26-28). He stated that he visually estimated that the

vehicle was traveling “close to about 45 miles per hour.” (Id. at 27). Trooper Byers

testified that because his view of the vehicle was obstructed, he asked a fellow

trooper to use a laser speed gun to determine the speed of the vehicle. (Id.). Trooper

Byers testified that the laser reading showed that the vehicle was actually moving

at a speed of 35 miles per hour. (Id. at 27-28).

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{¶15} Trooper Byers indicated that he was concerned about the vehicle

because at “[t]hat time of day and at the 70 mile per hour zone, you hardly will ever

see a vehicle traveling at that low rate of speed. And if they are, it could be a

possible medical episode or somebody is having vehicle issues.” (Id. at 28). He

reiterated that he was “[a]bsolutely” concerned that the driver of the vehicle could

have been suffering from a medical problem or that they were otherwise impaired.

(Id. at 29). He also testified that the vehicle’s slow speed caused him concern for

the safety of other motorists and that he deemed the driving to be unsafe. (Id. at 29,

36).

{¶16} Trooper Byers testified that he pulled out of the “cross over” to catch

up to the vehicle and “just paced him right there at about the same speed.” (Id. at

28). Although he could not recall the speed at which the vehicle was traveling while

he paced it, he did testify that the vehicle was moving “very slow.” (Id. at 29).

Trooper Byers testified that he eventually activated his blue emergency lights and

effected a stop of the vehicle. (Id.). He identified Moiduddin as the driver of the

slow-moving vehicle. (Id. at 31).

{¶17} On cross-examination, Trooper Byers initially testified that he

believed that it was raining when he stopped Moiduddin’s vehicle, but upon being

presented with a copy of the traffic ticket he issued to Moiduddin, he acknowledged

that the ticket stated that there were no adverse weather conditions at the time of the

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stop. (Id. at 42, 44); (Defendant’s Ex. A). He further testified that traffic was light

on the morning of the stop, that the stop was executed in a rural area, that the

highway featured two eastbound lanes, and that there was no posted minimum speed

limit. (Apr. 5, 2018 Tr. at 44-45). Trooper Byers stated that there were no cars

between Moiduddin’s vehicle and his cruiser while he paced Moiduddin’s vehicle

and that, “[o]ther than a few cars that passed [him]” while he was pacing Moiduddin,

there was no other traffic on US 33. (Id. at 45). According to Trooper Byers,

Moiduddin was operating his vehicle in the right-hand lane, and he was neither

impeding nor blocking traffic. (Id. at 45-46).

{¶18} Trooper Byers stated that as he paced Moiduddin’s vehicle, he did not

observe Moiduddin weave in his lane, commit any marked lane violations, or

commit any traffic violation other than what Trooper Byers believed to be a slow-

speed violation. (Id. at 45-46). He testified that the reason he stopped Moiduddin’s

vehicle was for a slow-speed infraction in violation of R.C. 4511.22. (Id. at 44).

When questioned about his earlier statement that he was concerned that the driver

of the vehicle could have been in the midst of a “medical episode,” Trooper Byers

conceded that his statement of facts summarizing the events of September 3, 2017

did not mention “any concern about [Moiduddin] possibly having a medical

episode.” (Id. at 52); (Defendant’s Ex. B).

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{¶19} Finally, on redirect-examination, Trooper Byers agreed with the

State’s proposition that “[i]f a car had come up fast behind this other vehicle driven

by Mr. Moiduddin, and a car was going the registered speed of 70 miles per hour,

and Mr. Moiduddin was going 35 miles per hour,” there would “have been an

unreasonable situation that [Trooper Byers] could have prevented.” (Apr. 5, 2018

Tr. at 55).

{¶20} On these findings, the trial court first concluded that Trooper Byers

did not have probable cause or reasonable suspicion to stop Moiduddin’s vehicle for

a violation of R.C. 4511.22(A):

Given the facts presented by the testimony of Trooper Byers, the fact

that there was no evidence presented that any traffic was impeded or

obstructed, and that there was no showing that [Moiduddin]

committed any other traffic infraction, the State has failed to make a

prima facie showing that [Moiduddin’s] conduct violated the elements

of O.R.C. 4511.22(A) on its face.1 Because Trooper Byers failed to

establish a prima facie violation of the statute, his suspicion of

1 R.C. 4511.22(A) provides: “No person shall * * * operate a vehicle * * * at such an unreasonably slow speed as to impede or block the normal and reasonable movement of traffic, except when stopping or reduced speed is necessary for safe operation or to comply with law.” Courts have generally interpreted the statute to require evidence of actual impediment or obstruction of traffic. State v. Bahen, 10th Dist. Franklin No. 16AP-65,

; State v. Dean, 5th Dist. Licking No. 12-CA-60,

.

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criminal activity was unreasonable. Accordingly, there was no basis

for the investigative traffic stop.

(Doc. No. 36).

{¶21} The State concedes that Trooper Byers had neither probable cause nor

reasonable suspicion to stop Moiduddin’s vehicle for a violation of R.C. 4511.22.2

(See Appellant’s Brief at 10-11). Given that it is undisputed that Moiduddin was

not operating his vehicle on a part of the highway with a posted minimum speed

limit3 and that Moiduddin’s vehicle did not impede or obstruct traffic, we do not

second-guess the State’s concession. Instead, the State argues that the judgment of

the trial court granting Moiduddin’s suppression motion should be reversed because

the trial court erred by concluding that the stop of Moiduddin’s vehicle was not valid

under the community caretaking exception.

{¶22} After concluding that the stop of Moiduddin’s vehicle was not

supported either by probable cause or by reasonable suspicion of a violation of R.C.

4511.22, the trial court proceeded to determine whether the “caretaker exception to

the warrant requirement” supported Trooper Byers’s stop of Moiduddin’s vehicle.

2 The State also conceded this point at the trial-court level. (See Doc. Nos. 34, 36). 3 A driver may also violate R.C. 4511.22 by operating their vehicle at a speed which is less than a posted minimum speed limit: “Whenever the director of transportation or local authorities determine on the basis of an engineering and traffic investigation that slow speeds on any part of a controlled-access highway, expressway, or freeway consistently impede the normal and reasonable movement of traffic, the director or such local authority may declare a minimum speed limit below which no person shall operate a motor vehicle, trackless trolley, or street car except when necessary for safe operation or in compliance with law.” R.C. 4511.22(B).

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(Doc. No. 36). In its analysis, the trial court relied on State v. Dunn, a case in which

the Supreme Court of Ohio held:

The community-caretaking/emergency-aid exception to the Fourth

Amendment warrant requirement allows a law-enforcement officer

with objectively reasonable grounds to believe that there is an

immediate need for his or her assistance to protect life or prevent

serious injury to effect a community-caretaking/emergency-aid stop.

,

. In concluding that the community

caretaking exception did not supply a valid basis for Trooper Byers’s stop of

Moiduddin’s vehicle, the trial court found that the “totality of the circumstances *

* * d[id] not suggest that there was an immediate need for assistance to protect life

or prevent serious injury.” (Doc. No. 36). The trial court concluded that although

Moiduddin “was driving at a very slow speed,” “he did not violate O.R.C. 4511.22

and slow speed alone does not create a reasonable belief that there was an

immediate need for assistance to prevent death or serious injury.” (Id.).

{¶23} The State argues that the stop of Moiduddin’s vehicle was permissible

under the community caretaking exception because Trooper Byers was reasonably

concerned that Moiduddin’s vehicle was mechanically impaired or that Moiduddin

was suffering from a “medical episode.” (Appellant’s Brief at 11-12). It further

contends that the stop was a valid exercise of Trooper Byers’s function as

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community caretaker because “operating a vehicle at such slow speed presented

concern for other motorists’ safety on US 33” even though Moiduddin’s driving did

not amount to a violation of R.C. 4511.22. (Id. at 11-12). In response, Moiduddin,

relying almost entirely on Dunn, argues that the trial court correctly determined that

the community caretaking exception is not applicable to the facts of this case

because “Trooper Byers did not have objectively reasonable grounds to believe that

there was an immediate need for his assistance to protect life or prevent serious

injury to justify the stop.” (Appellee’s Brief at 5). Moiduddin asserts that this case

“involve[s] the stop of a vehicle by show of authority and is different from coming

upon a vehicle that is already stopped to inquire whether there is a need of

assistance.” (Id.). Finally, Moiduddin submits that “[Trooper Byers’s] conduct of

pacing the vehicle for a significant amount of time is contrary to any belief of

immediate need for assistance.” (Id. at 6).

{¶24} Before evaluating the merits of the parties’ arguments, we feel it

necessary to review the origins of the community caretaking exception and the

development of the doctrine. The Supreme Court of the United States first

acknowledged the community caretaking exception in Cady v. Dombrowski,

,

(1973). In that case, Dombrowski was involved in a single-

vehicle accident in rural Wisconsin.

. At the scene of the accident,

Dombrowski informed local police officers that he was a Chicago police officer.

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at 436. Believing that Chicago police officers were required by regulation to carry

their service revolvers with them at all times, local police officers looked for

Dombrowski’s service weapon on his person.

Failing to find a weapon on

Dombrowski’s person, one of the local police officers looked into the front seat and

glove compartment of Dombrowski’s vehicle; however, the officer did not find a

revolver.

Thereafter, local police officers had the disabled vehicle towed to a

privately owned garage where it was left outside without a police guard.

After

Dombrowski was formally arrested for drunken driving and taken to the hospital,

one of the local police officers drove to the private garage to search for

Dombrowski’s revolver in the wrecked automobile.

. During the

search for Dombrowski’s weapon, which was conducted without a warrant, the local

police officer unlocked the trunk of the vehicle, where he discovered evidence

linking Dombrowski to a murder—a crime for which he was eventually convicted.

.

{¶25} In upholding the constitutionality of the search of Dombrowski’s

vehicle, the court observed:

Because of the extensive regulation of motor vehicles and traffic, and

also because of the frequency with which a vehicle can become

disabled or involved in an accident on public highways, the extent of

police-citizen contact involving automobiles will be substantially

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greater than police-citizen contact in a home or office. Some such

contacts will occur because the officer may believe the operator has

violated a criminal statute, but many more will not be of that nature.

Local police officers, unlike federal officers, frequently investigate

vehicle accidents in which there is no claim of criminal liability and

engage in what, for want of a better term, may be described as

community caretaking functions, totally divorced from the detection,

investigation, or acquisition of evidence relating to the violation of a

criminal statute.

(Emphasis added.)

. The court concluded that the justification for the

search of Dombrowski’s vehicle, “concern for the safety of the general public who

might be endangered if an intruder removed a revolver from the trunk of the

vehicle,” was “constitutionally reasonable.”

. Acknowledging its previous

“recognition of the distinction between motor vehicles and dwelling places,” the

court held that “the type of caretaking ‘search’ conducted * * * of a vehicle that was

neither in the custody nor on the premises of its owner, and that had been placed

where it was by virtue of lawful police action, was not unreasonable solely because

a warrant had not been obtained.”

.

{¶26} Since Dombrowski, “an overwhelming majority of lower federal

courts and state courts have consistently described and applied the [community

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caretaking] doctrine as an exception to the Fourth Amendment’s warrant

requirement.” State v. McCormick,

(Tenn. 2016), fn. 9

(collecting cases). See Commonwealth v. Livingstone,

, 58-60 (2017)

(collecting cases). While many courts have limited application of the exception to

its original context—searches (and occasionally seizures) of automobiles—some

courts have extended the doctrine to permit warrantless entries into and searches of

the home.4 Compare, e.g., Ray v. Twp. of Warren,

(3d Cir. 2010)

(“We * * * interpret the Supreme Court’s decision in [Dombrowski] as being

expressly based on the distinction between automobiles and homes for Fourth

Amendment purposes. The community caretaking doctrine cannot be used to justify

warrantless searches of a home.”) with, e.g., State v. Pinkard,

(2010) (“[U]nder certain circumstances a reasonably exercised community

caretaker function may permit a warrantless entry into a home * * *.”). As the

doctrine has developed, “the community caretaking rubric has become ‘a catchall

for the wide range of responsibilities that police officers must discharge aside from

their criminal enforcement activities.’” MacDonald v. Town of Eastham,

(1st Cir. 2014), quoting United States v. Rodriguez-Morales,

(1st Cir. 1991). Consequently, it is unsurprising that courts have struggled to

4 Because this appeal involves the stop of an automobile on a public highway, we do not concern ourselves with the question of whether the community caretaking doctrine should extend beyond the context of automobiles to residences.

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consistently frame the scope of the exception and differentiate it from other Fourth

Amendment exceptions.

{¶27} As explained by the First Circuit Court of Appeals:

[C]ourts do not always draw fine lines between the community

caretaking exception and other exceptions to the warrant requirement.

The juxtaposition between the community caretaking exception and

the emergency aid exception furnishes an apt illustration of this

overlap. Some courts have treated emergency aid as a freestanding

exception to the warrant requirement. Others have classified

emergency aid as “a subcategory of the community caretaking

exception.” People v. Ray,

,

,

(1999). Indeed, some courts have held that giving the

community caretaking exception a life in the home independent and

apart from the emergency aid exception “would render the

emergency-aid doctrine obsolete.” [State v.] Vargas, [

,]

63 A.3d [175,] at 189 [(2013)]. The other side of the coin is that some

courts continue to insist on a sharp line of demarcation between the

emergency aid exception and the community caretaking exception.

The same sort of disarray is evident in the manner in which courts

have attempted to define the interface between the exigent

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circumstances exception to the warrant requirement and the

community caretaking exception. For example, some courts “apply

what appears to be a modified exigent circumstances test, with

perhaps a lower threshold for exigency if the officer is acting in a

community caretaking role.” Twp. of Warren,

. Other

courts steadfastly maintain that the exceptions are not congruent and

must be analyzed and applied distinctly.

Given the profusion of cases pointing in different directions, it is

apparent that the scope and boundaries of the community caretaking

exception are nebulous.

(Citations and footnotes omitted.) Id. at 13-14. The First Circuit’s observations are

addressed specifically to the extent to which those courts that extend the community

caretaking exception to warrantless searches of the home blend the community

caretaking exception with the emergency aid and exigent circumstances exceptions

in that context. However, the community caretaking exception has also been

correlated with the emergency aid and exigent circumstances exceptions in the

context of automobile stops. See, e.g., United States v. Toussaint,

(5th Cir. 2016).

{¶28} Amidst this doctrinal uncertainty, the Supreme Court of Ohio decided

State v. Dunn, the case the trial court used to conclude that the stop of Moiduddin’s

-22- Case No. 14-18-15

vehicle was not valid under the community caretaking exception. In Dunn, a law

enforcement officer received a dispatch that a suicidal man driving a tow truck was

in possession of a weapon and intended to kill himself when he arrived at a specified

address.

,

. En route to the given address,

the law enforcement officer spotted the tow truck. Id. at ¶ 3. He then executed a

traffic stop of the tow truck, later finding a loaded firearm in the glovebox of the

tow truck. Id. at ¶ 4-5. Dunn was subsequently indicted on one count of improper

handling of a firearm in a motor vehicle, and he moved to suppress evidence on

grounds that the traffic stop violated his rights under the Fourth Amendment. Id. at

¶ 7. The trial court overruled Dunn’s motion to suppress but the trial court’s ruling

was subsequently reversed on appeal. Id. at ¶ 8-9.

{¶29} In reversing the appellate court’s decision, the Supreme Court of Ohio

stated: “There are a number of exceptions to the Fourth Amendment warrant

requirement, including the one applicable to this case, the community-caretaking

exception, which courts sometimes refer to as the ‘emergency-aid exception’ or

‘exigent-circumstance exception.’” Id. at ¶ 15. The court noted that the Supreme

Court of the United States had referred to the community caretaking exception as

the “emergency-aid exception” and that its own precedents discussed the exception

under the term “exigent circumstances” rather than “community caretaking.” Id. at

¶ 18-20, citing Michigan v. Fisher,

,

(2009), Brigham City

-23- Case No. 14-18-15

v. Stuart,

,

(2006), Mincey v. Arizona,

,

(1978), and State v. Applegate,

(1994). According to

the court, the “community-caretaking/emergency-aid exception to the Fourth

Amendment warrant requirement is necessary to allow police to respond to

emergency situations where life or limb is in jeopardy.” Id. at ¶ 21.

{¶30} On its face, Dunn appears to stand for the proposition that “community

caretaking” is synonymous with “emergency aid” or assistance rendered under

“exigent circumstances.” See id. at ¶ 15. However, examining the cases of the

Supreme Court of the United States cited in Dunn and the Supreme Court of Ohio’s

own precedents, there is good reason to believe that, whatever overlap might exist

between the community caretaking, emergency aid, and exigent circumstances

exceptions, the concepts are not entirely interchangeable.

{¶31} First, the decisions of the Supreme Court of the United States relied

on by the court in Dunn do not limit application of the community caretaking

exception to instances where law enforcement officers possess an objectively

reasonable belief that they must intervene immediately in order to protect life or

prevent injury. Importantly, Dombrowski, the source of the community caretaking

doctrine, did not itself involve an “emergency” or “exigency” of the type present in

Dunn. In Dombrowski, the justification for the warrantless search of Dombrowski’s

vehicle was “concern for the safety of the general public who might be endangered

-24- Case No. 14-18-15

if an intruder removed a revolver from the trunk of the vehicle.” (Emphasis added.)

. Thus, it was law enforcement’s interest in neutralizing the

possibility of harm, rather than its need to respond to the probability of imminent

injury or death, that justified the warrantless search. Furthermore, in subsequent

applications of Dombrowski, the court held that, pursuant to the community

caretaking function, law enforcement officers may impound vehicles and conduct

standardized inventory searches of those vehicles. Colorado v. Bertine,

,

(1987); South Dakota v. Opperman,

,

(1976). Neither of these cases was decided on the basis that impounding and

inventorying the vehicles were reasonable because law enforcement officers were

presented with an urgent need to intervene to prevent injury or death. Instead,

impounding and inventorying the contents of the vehicles were justified by a

generalized interest in “guard[ing] the police from danger” posed by potential

hazards in the vehicles as well as interests in “protect[ing] [the] owner’s property

while it [was] in the custody of the police * * * [and] insur[ing] against claims of

lost, stolen, or vandalized property.”

. Hence, the most direct

guidance from the Supreme Court of the United States suggests that, as community

caretakers, law enforcement officers may conduct certain searches and seizures in

circumstances bereft of emergency or exigency.

-25- Case No. 14-18-15

{¶32} Moreover, in Dunn, the Supreme Court of Ohio relied heavily on the

Supreme Court of the United States’s opinions in Mincey, Brigham City, and Fisher

to support its equation of the community caretaking exception with the emergency

aid and exigent circumstances exceptions. However, Mincey, Brigham City, and

Fisher do not couch their holdings in terms of “community caretaking,” and the

phrase does not appear in the opinions. In fact, the only mention in either Mincey,

Brigham City, or Fisher to Dombrowski or any of its direct progeny is a single

reference in Mincey to Justice Powell’s concurrence in Opperman. See Mincey,

, citing

(Powell, J., concurring).

{¶33} Finally, the Supreme Court of Ohio’s pre-Dunn and post-Dunn

jurisprudence suggests that the court itself does not limit the community caretaking

exception to instances where law enforcement officers possess an objectively

reasonable belief that they must intervene immediately in order to protect life or

prevent injury. In numerous cases predating Dunn, the court, frequently relying on

Dombrowski, Bertine, or Opperman, recognized that law enforcement officers may

impound vehicles and conduct inventory searches in their roles as community

caretakers. E.g., Blue Ash v. Kavanagh,

,

, ¶ 11.

Likewise, after Dunn, the court acknowledged that “[i]nventory searches performed

pursuant to standard police procedure on vehicles taken into police custody as part

of a community-caretaking function are reasonable.” State v. Leak, 145 Ohio St.3d

-26- Case No. 14-18-15

165,

, citing

.5 Finally, there are further

indications from the post-Dunn court that the community caretaking function

encompasses more than the administration of emergency aid. See State v. Banks-

Harvey,

,

(Kennedy, J., concurring in

judgment only) (“The United States Supreme Court has recognized the caretaking

function of law enforcement in relation to motor vehicles and in rendering

emergency aid.”) (Emphasis added.), citing

, Mincey at 392, and

Fisher,

.

{¶34} Therefore, although Dunn can be read to suggest that the community

caretaking, emergency aid, and exigent circumstances exceptions are fungible, we

believe that Dunn is better understood as representing the view that the emergency

aid and exigent circumstances exceptions fall under the broader umbrella of

“community caretaking.” By implication, then, there may be some actions taken by

law enforcement officers that do not fit under the emergency aid or exigent

circumstances exceptions but that are nevertheless justifiable because they were

carried out in order to discharge a duty under another facet of the community

caretaking function.

{¶35} Returning to the parties’ arguments, Moiduddin argues that the trial

court was correct in applying Dunn to conclude that the stop of his vehicle was

5 Leak was a plurality opinion.

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unconstitutional because “the totality of the circumstances * * * d[id] not suggest

that there was an immediate need for assistance to protect life or prevent serious

injury.” (Appellee’s Brief at 5-6); (Doc. No. 36). However, in light of the preceding

discussion, we conclude that the trial court erred by relying exclusively on Dunn to

hold that the stop of Moiduddin’s vehicle was not justified under the community

caretaking exception. Even assuming that the trial court correctly concluded that

Moiduddin’s “slow speed alone d[id] not create a reasonable belief that there was

an immediate need for assistance to prevent death or serious injury,” we still find

that Trooper Byers was executing a community caretaking function when he

stopped Moiduddin’s vehicle. Thus, we conclude that the stop of Moiduddin’s

vehicle was permissible under the community caretaking exception.

{¶36} As this court has previously held, “[w]hile Terry and much of its

progeny stand for the proposition that a police officer generally needs a reasonable

suspicion, based on specific and articulable facts, that an occupant of a vehicle is or

has been engaged in criminal activity, nothing in the Fourth Amendment requires

that the ‘specific and articulable facts’ relate to suspected criminal activity.”

(Emphasis sic.) State v. Norman,

(3d Dist. 1999). We

concluded that to insist that every vehicle stop be supported by a reasonable,

articulable suspicion of criminal activity would be to “overlook[] the police officer’s

legitimate role as a public servant designed to assist those in distress and to maintain

-28- Case No. 14-18-15

and foster public safety.”

Thus, “under appropriate circumstances[,] a law

enforcement officer may be justified in approaching a vehicle * * * without needing

any reasonable basis to suspect criminal activity * * * to carry out ‘community

caretaking functions’ to enhance public safety.”

. As with all searches and

seizures, the “key to * * * permissible police action” when conducting community

caretaking functions is reasonableness.

Provided that a law enforcement officer

is “able to point to reasonable, articulable facts upon which to base her safety

concerns,” the brief seizure of an automobile and its occupants will be deemed

reasonable.

{¶37} While we have had difficulty locating an Ohio case endorsing the

principle that a law enforcement officer is justified in effecting a community

caretaking stop of a vehicle doing little more than driving at an unusually slow,

albeit noncriminal, speed, decisions of the courts of our sister states support that

such stops are constitutionally reasonable. See Trejo v. State,

, 689-

690 (Miss. 2011) (holding that a law enforcement officer may perform a community

caretaking stop of a motorist whose slow driving suggests that they are falling

asleep, but concluding that driving between 58-60 miles per hour in a zone with a

speed limit of 70 miles per hour, without more, does not support a reasonable

inference that the driver is at risk of falling asleep); State v. Rincon,

(2006) (“Absent reasonable suspicion, and under very limited and

-29- Case No. 14-18-15

narrow circumstances, an inquiry stop of a slow driver may also be permissible

pursuant to the community caretaking exception to the Fourth Amendment.”); State

v. Rinehart,

(S.D. 2000); Ortega v. State,

(Tex.App. 1998); State v. Martinez, 260 N.J.Super 75, 77-78 (1992)

(abnormally slow speed suggests number of objectively reasonable concerns

including: “something might be wrong with the car * * * [and] a traffic safety

hazard is presented to drivers approaching from the rear when an abnormally slow

moving vehicle is operated at night on a roadway without flashers”); contra State v.

Bacher,

,

(1st Dist.) (community

caretaking exception inapplicable where only apparent indication that driver might

have been in distress was the fact that the vehicle was moving at 42-43 miles per

hour in a zone with a speed limit of 65 miles per hour). We join these courts and

conclude that in some circumstances, a law enforcement officer may be justified in

effecting a community caretaking stop of an abnormally slow-moving vehicle to, at

the very least, determine whether the vehicle is suffering from a mechanical

malfunction and to temporarily remove the hazard of an excessively slow-moving

vehicle from fast-moving traffic.

{¶38} Here, Trooper Byers testified that because of the abnormally slow

speed at which Moiduddin’s vehicle was traveling, he was concerned that

Moiduddin’s vehicle was experiencing mechanical problems or that Moiduddin was

-30- Case No. 14-18-15

suffering from a “medical episode.” (Apr. 5, 2018 Tr. at 28-29). Trooper Byers

also indicated that he was concerned for Moiduddin’s safety and for the safety of

other motorists on the highway due to the risk that a much faster moving vehicle

could collide with Moiduddin’s slow-moving vehicle. (See id. at 29, 36, 55). Thus,

rather than basing his stop on a generalized “hunch” that the driver of the vehicle

was in distress or that public safety was endangered, Trooper Byers articulated

specific facts upon which his concerns were based. Although the circumstances do

not necessarily suggest that immediate assistance was needed to prevent serious

injury or death, the circumstances do support that Trooper Byers’s safety concerns

were legitimate and reasonable and that he was justified in stopping Moiduddin’s

vehicle to dispel these concerns.

{¶39} Nevertheless, Moiduddin argues that the stop of his vehicle was not

constitutionally valid because “[t]here is no mention of a medical episode in Trooper

Byers’s Statement of Facts and his conduct of pacing the vehicle for a significant

amount of time is contrary to any belief of immediate need for assistance.”

(Appellee’s Brief at 6). Moiduddin’s argument is without merit. As the Supreme

Court of the United States has stressed repeatedly, “[a]n action is ‘reasonable’ under

the Fourth Amendment, regardless of the individual officer’s state of mind, ‘as long

as the circumstances, viewed objectively, justify [the] action.’” (Emphasis sic.)

Brigham City,

, quoting Scott v. United States,

,

-31- Case No. 14-18-15

(1978). Here, the circumstances, when viewed objectively, support

that a community caretaking stop of Moiduddin’s vehicle was justified to determine

whether Moiduddin’s car was functioning properly and to briefly remove his vehicle

from the flow of traffic, thereby fostering and enhancing public safety. Thus, the

stop of Moiduddin’s vehicle was reasonable regardless of Trooper Byers’s

subjective beliefs or of the fact that he hesitated in stopping Moiduddin’s vehicle.

{¶40} Similarly, the fact that Trooper Byers testified that he stopped

Moiduddin’s vehicle for a potential violation of R.C. 4511.22 does not defeat

application of the community caretaking exception. Although Dombrowski speaks

of community caretaking functions as those “totally divorced” from the detection

and investigation of violations of criminal statutes, “[a]s an officer goes about his

or her duties, an officer cannot always ascertain which hat the officer will wear—

his law enforcement hat or her community caretaker hat.” State v. Kramer,

(2009). Consequently, law enforcement officers may encounter

situations where both their law enforcement and their community caretaking

functions are implicated. As noted above, an officer’s subjective motivations have

no bearing on the question of whether a search or seizure is reasonable under the

Fourth Amendment. Brigham City at 404-405. Therefore,

so long as a police officer is able to point to specific, objective, and

articulable facts which, standing alone, reasonably would suggest that

-32- Case No. 14-18-15

his assistance is necessary, a coinciding subjective law enforcement

concern by the officer will not negate the validity of [a search or

seizure] under * * * the community caretaking doctrine.

Livingstone, 644 Pa. at 74. See McCormick,

;

; State v. Smathers,

(2014). Under the

circumstances, it would have been objectively reasonable for any law enforcement

officer to perform a community caretaking stop of Moiduddin’s vehicle.

Accordingly, it is irrelevant whether Trooper Byers’s stop of Moiduddin’s vehicle

was partially motivated by an interest in enforcing the traffic laws.

{¶41} In sum, we conclude that the trial court erred by holding that the stop

of Moiduddin’s vehicle was not justified under the community caretaking exception.

As a result, we conclude that the trial court erred by granting Moiduddin’s motion

to suppress.

{¶42} Having concluded that the trial court erred by granting Moiduddin’s

motion to suppress, we now consider whether the trial court also erred by dismissing

the indictment against Moiduddin. In this case, it appears that the trial court’s

decision to dismiss the indictment was predicated on its assessment that, having

granted Moiduddin’s motion to suppress, the State was left with insufficient

evidence to prosecute Moiduddin for the crimes with which he was charged. (See

Doc. No. 36). Given that we have determined that the trial court’s decision to grant

-33- Case No. 14-18-15

Moiduddin’s motion to suppress was in error, we have little difficulty reversing the

trial court’s dismissal of the indictment as the ostensible basis for the dismissal has

been fatally undermined. However, even if the trial court had been correct in

granting Moiduddin’s suppression motion, we would still conclude that the trial

court erred by dismissing the indictment.

{¶43} “If a trial court finds a Fourth Amendment violation, the remedy is

suppression of the wrongfully obtained evidence, not dismissal.” State v. Lassiter,

8th Dist. Cuyahoga No. 92278,

, ¶ 5. See State v. Sanders, 7th Dist.

Columbiana No.

,

; State v. Marcum, 12th Dist.

Butler Nos. CA2005-10-431 and CA2005-20-446,

. Neither

appellate courts nor trial courts “possess adequate or complete prosecutorial

information and are [thus] unable to make an informed judgment whether sufficient

evidence remains to prosecute.” State v. Malone, 6th Dist. Erie No. E-03-060, 2004-

Ohio-3794, ¶ 20, citing State v. Bertram,

(1997). As a result,

“[d]ismissal of a case by the trial court after granting a motion to suppress is error

because it deprives the state of its opportunity to determine the sufficiency of its

own case.” Marcum at ¶ 10, citing State v. Hamilton,

(3d

Dist. 1994). After a trial court grants a motion to suppress, “[t]he state is permitted

to determine whether it will seek a stay of proceedings to pursue a Crim.R. 12 appeal

or alternatively proceed to a final judgment.”

citing Malone at ¶ 19, citing State

-34- Case No. 14-18-15

v. Fraternal Order of Eagles Aerie 0337 Buckeye,

(1991).

“‘While the state may have a tougher row to hoe without the availability of

suppressed evidence, it does not necessarily follow that, as a matter of law, the

defendant is entitled to dismissal of the charge.’” Id. at ¶ 11, quoting State v. Couch,

2d Dist. Montgomery No. 17520,

, *5 (June 25, 1999).

{¶44} Therefore, regardless of whether the trial court correctly or incorrectly

granted Moiduddin’s motion to suppress evidence, the trial court erred when it

dismissed the charges pending against Moiduddin. See Malone at ¶ 21.

{¶45} The State’s assignment of error is sustained.

{¶46} Having found error prejudicial to the appellant herein in the particulars

assigned and argued, we reverse the judgment of the trial court and remand for

further proceedings consistent with this opinion.

Judgment Reversed and Cause Remanded

SHAW, J., concurs.

/jlr

WILLAMOWSKI, J., concurring in part and dissenting in part.

{¶47} I concur with the majority that the trial court should not have dismissed

the case upon granting the motion to suppress. The decision whether to proceed

with the case without the suppressed evidence is one for the prosecutor to make.

-35- Case No. 14-18-15

However, I dissent from the majority opinion in its decision to reverse the judgment

granting the motion to suppress. If this is a question of law being misunderstood by

the trial court, as would permit this court to reverse the judgment of the trial court,

then the matter should be remanded to the trial court for it to reconsider its decision

using the correct legal standard. I fully agree with the majority that in an appropriate

situation an officer can stop a driver for driving at a speed substantially under the

posted limit as part of the caretaking function. However, in this case the officer’s

testimony regarding the reasons for the stop could either support a finding that the

stop was for the purpose of his caretaking functions or the trial court could determine

that based upon the other facts, this claim lacked credibility. If the trial court used

the correct standard of law, but found the officer’s claim of using the caretaking

function was not credible, then that is a question of fact that we should not overturn

and the judgment should be affirmed.

{¶48} A review of the trial court’s judgment shows that the trial court

specifically considered the possibility of the caretaking function as a basis for a stop.

It noted that the Supreme Court of Ohio has held as follows:

The community-caretaking/emergency-aid exception to the Fourth Amendment warrant requirement allows a law- enforcement officer with objectively reasonable grounds to believe that there is an immediate need for his or her assistance to protect life or prevent serious injury to effect a community- caretaking/emergency-aid stop.

-36- Case No. 14-18-15

State v. Dunn,

,

,

. The

trial court then determined in fact that there was no evidence that suggested an

immediate need for assistance to protect life or prevent serious injury in this case.

{¶49} On appeal, the determination of the facts is left to the discretion of the

trial court. State v. Leak,

,

,

.

An appellate court “must accept the trial court’s findings of fact if they are supported

by competent, credible evidence.”

quoting State v. Burnside,

,

, ¶ 8,

. As noted above, the community

caretaker function can be claimed as an exception to the Fourth Amendment warrant

requirement if the officer credibly can cite to specific facts which would lead an

objective, reasonable person to believe that there is an immediate need for assistance

to protect life or prevent serious injury. Slow speed alone is not sufficient for

determining that emergency aid is required. State v. Bacher,

,

,

(holding that traveling at a speed of 22-23

miles per hour below the posted speed limit on the interstate without other evidence

of an emergency was insufficient to support a stop on the basis of the community

caretaking function.

{¶50} In this case, the trial court specifically found no such facts were

present. The only evidence presented was a slow speed from which the officer

testified that he thought there could be a medical issue. Tr. 28-29. However, he

-37- Case No. 14-18-15

also conceded that he did not mention that belief in his report. Tr. 52. The officer

admitted that he pulled Moiduddin over for a slow speed violation. Tr. 44. The trial

court determined that the officer had not presented evidence from which an

objective, reasonable person could conclude there was an immediate need for aid.

Although the officer stated that he was concerned about a medical issue, the trial

court could have chosen to disbelieve this testimony as that is the province of the

trier of fact. State v. DeHass,

,

(1967). The

trial court found this case to be more like the situation in Bacher. Having found no

factual support for “an immediate need for assistance to protect life or prevent

serious injury”, the trial court determined that the caretaking exception to the Fourth

Amendment did not apply in this case. Doc. No. 36. As the factual findings of the

trial court are supported by some competent, credible evidence, this Court should

accept the findings of fact.

Applying the law to those facts, I would

affirm the judgment of the trial court as to suppression. For this reason, I

respectfully concur in part and dissent in part from the majority opinion.

-38-