[Cite as State v. Billings,

.]

IN THE COURT OF APPEALS FIRST APPELLATE DISTRICT OF OHIO HAMILTON COUNTY, OHIO

STATE OF OHIO, : APPEAL NOS. C-200245 C-200246 Plaintiff-Appellant, : TRIAL NOS. 19CRB-11129A 19CRB-11129B vs. :

IMMANUEL BILLINGS, : O P I N I O N. Defendant-Appellee. :

Criminal Appeals From: Hamilton County Municipal Court

Judgments Appealed From Are: Reversed and Cause Remanded

Date of Judgment Entry on Appeal: June 30, 2021

Andrew Garth, Interim City Solicitor, William T. Horsley, Chief Prosecuting Attorney, and Meagan D. Woodall, Assistant Prosecuting Attorney, for Plaintiff- Appellant,

Raymond T. Faller, Hamilton County Public Defender, and David Hoffmann, Assistant Public Defender, for Defendant-Appellee. OHIO FIRST DISTRICT COURT OF APPEALS

MYERS, Presiding Judge.

{¶1} The state of Ohio appeals the judgments of the Hamilton County

Municipal Court granting defendant-appellee Immanuel Billings’s motion to

suppress. Because the trial court erred in granting the motion to suppress based on

grounds that were not raised in the motion and that were beyond the scope of the

motion as stipulated by Billings at the suppression hearing, and because the trial

court erred in concluding that there was no probable cause to arrest Billings, we

reverse.

I. Background Facts and Procedure {¶2} Billings was charged with obstructing official business and resisting

arrest during a traffic stop where he was the passenger of a vehicle driven by his

mother. He filed a motion to suppress in which he asserted that police did not have

probable cause to arrest him for obstructing official business.

{¶3} At the hearing on the motion, defense counsel stipulated that his

motion was limited to the lack of probable cause to arrest:

THE COURT: Are there any stipulations or anything you want to put

on the record? What’s being disputed in terms of the stop and the

arrest? What - -

[DEFENSE COUNSEL]: No probable cause, your Honor.

THE COURT: No PC to arrest.

[DEFENSE COUNSEL]: Right.

The parties stipulated that Billings’s arrest was a warrantless arrest.

{¶4} The state presented the testimony of two police officers. Cincinnati

Police Officer Shermel Davis testified that he was riding with a ten-officer bike patrol

unit in downtown Cincinnati when an SUV driven by Billings’s mother, Tamika1

1 Fields’s first name is spelled “Tamika” and “Tomica” in the transcript of the motion hearing.

2 OHIO FIRST DISTRICT COURT OF APPEALS

Fields, pulled up next to the officers, “has some words for us, speeds off, cuts in front

of us.”

{¶5} The officers pulled Fields over for an improper-passing traffic

violation. The officers requested that Fields roll the vehicle’s windows down, but she

refused and was “very uncooperative.” Officer Davis testified that there was “[a] lot

of yelling back and forth - - she’s yelling at me. Her son [Billings, a back-seat

passenger] is yelling at me [and] * * * the rest of the passengers in the back are

yelling.” Officer Davis said he asked Fields to roll the windows down because he was

unable to see who was in the back seat of the vehicle. Again, Fields refused to roll the

windows down.

{¶6} Cincinnati Police Officer Baron Osterman described the scene as

“chaotic.” He said that there were six or seven people inside the vehicle, and “there

was a lot of yelling going on from the inside [of] the vehicle, out towards us.”

According to Officer Osterman, “There was a lot of excessive movement, which we,

generally, don’t like as police officers. You can’t see where people are reaching,

where they’re moving to or if there’s weapons in the car.” Officer Osterman testified

that “the front passenger began to exit the vehicle, [and] a digital scale - - which is

commonly used as drug paraphernalia - - fell from the vehicle.”

{¶7} Officer Davis testified that Billings “stepped out [of the vehicle] before

I told him to step out,” so he told Billings “to sit back in the car,” and Billings

complied.

{¶8} Then Officer Davis ordered everyone out of the vehicle because “there

was a lot of commotion going on. In between [Fields’s] yelling in the front and

everybody in the back seat, it was a safety hazard.” According to Officer Osterman,

Billings complied with Officer Davis’s order to get out of the vehicle, but when Officer

Davis asked Billings to turn around and place his hands behind his back, Billings

refused and re-entered the vehicle. Officer Osterman stated, “If we ask somebody to

3 OHIO FIRST DISTRICT COURT OF APPEALS

step out of the vehicle, and they don’t want to do it or they try to get back into the

vehicle,” officer safety becomes a concern because “they may be going back in for a

weapon or to retrieve some type of contraband.”

{¶9} The officers gave Billings several commands to get out of the vehicle,

but Billings refused. When the officers grabbed Billings to remove him from the

vehicle, Billings resisted by holding on to the interior of the vehicle.

{¶10} When the prosecutor asked Officer Osterman how Billings’s actions impeded the performance of his duties as a law enforcement officer, defense counsel

objected, stating that “the [c]ourt just needs to determine whether or not there was

probable cause for him to make the arrest. That’s all we’re contesting here. There

was no probable cause.” After the trial court overruled the objection, Officer

Osterman stated, “Well, we have to deal with that specific situation instead of

continuing with the actual investigation, which was the initial traffic stop.” The

parties also introduced into evidence video from Officer Davis’s and a second

officer’s body-worn cameras.

{¶11} After the suppression hearing, the parties submitted written closing arguments. In Billings’s written closing argument, he asserted for the first time that

the traffic stop was illegally prolonged and that the seizure violated R.C. 2935.07,

which requires police to inform a person arrested without a warrant of the officer’s

authority to do so and the cause of the arrest.

{¶12} The trial court granted Billings’s motion and suppressed the evidence resulting from the arrest. In doing so, the court specifically considered the

arguments that Billings did not raise until after the suppression hearing. The court

assessed the traffic stop and concluded that the police had unreasonably and

unlawfully prolonged it. The court also found that police violated R.C. 2935.07 by

failing to inform Billings or his mother of the reason for the stop. In addition, the

4 OHIO FIRST DISTRICT COURT OF APPEALS

court concluded that police had no probable cause to arrest Billings for obstructing

official business and that the resisting-arrest charge was unlawful.

II. The State Appeals {¶13} The state now appeals. In a single assignment of error, the state argues that the trial court erred by granting the motion to suppress because the court

improperly exceeded the scope of the motion in doing so and because the officers had

probable cause to arrest Billings. We agree.

{¶14} Appellate review of a motion to suppress presents a mixed question of law and fact. State v. Burnside,

,

,

. We must accept the trial court’s factual findings if they are supported by

competent, credible evidence, but we review de novo the trial court’s application of

the law to those facts.

A. The Trial Court Exceeded the Scope of the Motion to Suppress {¶15} To suppress evidence obtained pursuant to a warrantless search or seizure, the defendant must “raise the grounds upon which the validity of the search

or seizure is challenged in such a manner as to give the prosecutor notice of the basis

for the challenge.” Xenia v. Wallace,

,

(1988).

The prosecutor is not required to anticipate the specific legal and factual grounds for

a defendant’s challenge to a warrantless search or seizure.

. The defendant

must clarify the legal and factual grounds upon which the defendant challenges the

evidence so that the prosecutor may adequately prepare for the suppression hearing.

{¶16} “By requiring the defendant to state with particularity the legal and factual issues to be resolved, the prosecutor and court are placed on notice of those

issues to be heard and decided by the court and, by omission, those issues which are

otherwise being waived.” State v. Wintermeyer,

, 2019-Ohio-

5156,

, ¶ 18, quoting State v. Shindler,

, 636

5 OHIO FIRST DISTRICT COURT OF APPEALS

N.E.2d 319 (1994). “Similarly, when a defendant makes stipulations or narrows the

issues to be decided at a suppression hearing, the prosecution need not ‘prove the

validity of every aspect of the search.’ ” Id. at ¶ 19, quoting State v. Peagler,

,

(1996). “Arguments not made by the defendant at

the suppression hearing are, therefore, deemed to have been waived.”

{¶17} A trial court commits reversible error by granting a motion to suppress on a basis not raised by the defendant’s motion because the state is not provided with

an opportunity to adequately prepare arguments and present evidence on an issue

not raised by the defendant. State v. Skeens, 5th Dist. Tuscarawas No. 2017 AP 11

0030,

; State v. Tyson,

,

, ¶ 32

(3d Dist); State v. Byrnes, 2d Dist. Montgomery No. 25860,

, ¶ 13-

14; State v. Duke, 9th Dist. Lorain No. 12CA010225,

.

{¶18} In this case, the only ground upon which Billings challenged the validity of his warrantless arrest was whether probable cause existed to arrest him

for obstructing official business. At the beginning of the suppression hearing,

Billings stipulated that the sole ground for his motion was the lack of probable cause.

He reiterated this during the evidentiary hearing by clearly stating (in support of his

argument to keep out evidence) that all the defendant was contesting was that there

was no probable cause for the arrest. Billings raised no challenge relating to either

R.C. 2935.07 or the reasonableness of the traffic stop in his motion to suppress, but

the trial court granted the motion, at least in part, on both of those grounds. By

failing to raise the reasonableness of the stop or the application of R.C. 2935.07,

however, Billings waived those arguments. See

. Because the

state was not afforded an opportunity to present evidence on the grounds not raised

by Billings in his motion to suppress, we hold that the trial court erred by granting

the motion on those grounds.

6 OHIO FIRST DISTRICT COURT OF APPEALS

B. The Police Had Probable Cause to Arrest {¶19} The only issue before the trial court was whether probable cause existed to arrest Billings for obstructing official business. The test for establishing

probable cause to arrest is whether the facts and circumstances within the police

officer’s knowledge were sufficient to warrant a prudent individual in believing that

the defendant had committing or was committing an offense. State v. Deters,

,

(1st Dist. 1998). A court must “examine the

events leading up to the arrest, and then decide ‘whether these historical facts,

viewed from the standpoint of an objectively reasonable police officer, amount to’

probable cause.” Maryland v. Pringle,

,

,

(2003), quoting Ornelas v. United States,

,

,

(1996).

{¶20} Probable cause is a lesser standard of proof than that required for a conviction because it requires only the probability of criminal activity, and not proof

beyond a reasonable doubt. State v. George,

,

(1989); State v. Hackney, 1st Dist. Hamilton No. C-150375,

.

Probable cause requires only the existence of circumstances that warrant suspicion.

; Hackney at ¶ 26. In other words, “it is clear that ‘only the

probability, and not a prima facie showing, of criminal activity is the standard of

probable cause.’ ” Illinois v. Gates,

,

,

(1983), quoting Spinelli v. United States,

,

,

(1969).

{¶21} Billings was charged with violating R.C. 2921.31(A), the obstructing- official-business statute, which provides: “No person, without privilege to do so and

with purpose to prevent, obstruct, or delay the performance by a public official of any

authorized act within the public official’s official capacity, shall do any act that

hampers or impedes a public official in the performance of the public official’s lawful

7 OHIO FIRST DISTRICT COURT OF APPEALS

duties.” A violation of the statute requires an affirmative act. State v. Wellman,

,

,

(1st Dist.).

{¶22} Here, the trial court found that there was no evidence that Billings committed an affirmative act or that his failure to act impeded or hampered the

officers’ investigation of the traffic violation. However, the trial court focused only

on Billings’s refusal to get out of the vehicle. The testimony and video evidence at

the hearing demonstrated that Billings’s actions in impeding the officers’

investigation began before that. When Billings was still outside the vehicle, he

refused an officer’s order to turn around and place his hands behind his back. He

then re-entered the vehicle, and despite repeated commands, he refused to exit the

vehicle. In addition, he held on to the interior of the vehicle to prevent the officers

from pulling him out of the vehicle. Billings’s conduct required the officers to shift

their attention to him, thereby hampering the officers’ investigation of the traffic

stop of his mother and the other passenger’s possession of drug paraphernalia.

{¶23} The officers’ testimony was borne out by the video evidence. Billings’s conduct in refusing an officer’s order to turn around and place his hands behind his

back, re-entering the vehicle that he had just vacated upon an officer’s order,

refusing the officers’ repeated commands to exit the vehicle, and holding the interior

of the vehicle to prevent himself from being pulled from the vehicle impeded the

officers’ investigation of the traffic stop. These facts, when considered as a whole,

would cause an objectively reasonable police officer to believe that Billings was

obstructing official business, and provided probable cause for his arrest.

{¶24} We hold that the trial court’s legal conclusion that the facts in this case did not provide probable cause to arrest was in error. Because Billings’s arrest was

supported by probable cause, the trial court erred by granting his motion to

suppress.

8 OHIO FIRST DISTRICT COURT OF APPEALS

III. Conclusion {¶25} Therefore, we sustain the state’s assignment of error, reverse the trial court’s judgments granting the motion to suppress, and remand the matter for

further proceedings consistent with law and this opinion.

Judgments reversed and cause remanded.

WINKLER and HENDON, JJ., concur.

SYLVIA SIEVE HENDON, retired, from the First Appellate District, sitting by assignment.

Please note: The court has recorded its own entry this date.

9