In re J.M.

2017 Ohio 7599

Opinion

[Cite as In re J.M., 2017-Ohio-7599.]

COURT OF APPEALS DELAWARE COUNTY, OHIO FIFTH APPELLATE DISTRICT

IN THE MATTER OF: : JUDGES: : Hon. Patricia A. Delaney, P.J. J.M., A DELINQUENT CHILD : Hon. John W. Wise, J. : Hon. Craig R. Baldwin, J. APPELLANT : : : Case No. 17 CAF 03 0015 : : OPINION

CHARACTER OF PROCEEDING: Appeal from the Delaware County Court of Common Pleas, Juvenile Division, Case Nos. 16100692TR, 16102337DL

JUDGMENT: Affirmed

DATE OF JUDGMENT: September 12, 2017

APPEARANCES:

For Appellant For Appellee

DAVID H. BIRCH CAROL HAMILTON O'BRIEN 2 West Winter Street Prosecuting Attorney Delaware, Ohio 43015 By: R. JOSEPH VARVEL Assistant Prosecuting Attorney Delaware County Prosecutor’s Office 140 North Sandusky Street Delaware, Ohio 43015 Delaware County, Case No. 17 CAF 03 0015 2

Baldwin, J.

{¶1} Appellant J.M., a juvenile, appeals from the decision of the Delaware

County Court of Common Pleas, Juvenile Division, denying his Motion to Suppress.

Appellee is the State of Ohio.

STATEMENT OF THE FACTS AND CASE

{¶2} On October 25, 2016, a traffic citation was filed against appellant in the

Delaware County Court of Common Pleas, Juvenile Division, citing appellant for operating

a vehicle while under the influence of alcohol or drugs (OVI) in violation of R.C. 4511.19.

On October 27, 2016, complaints against appellant were filed in the same court charging

him with being an unruly child in violation of R.C. 2151.022(A) and offenses involving

underage persons in violation of R.C. 4301.69(E)(1). Appellant denied all of the charges.

{¶3} Appellant, on December 8, 2016, filed a Motion to Suppress. Appellant, in

his motion, argued that the stop, continued detention and investigation of him was without

reasonable articulable suspicion and/or probable cause and that the Officer’s request for

him to submit to the horizontal gaze nystagmus test (HGN) was made without first

obtaining reasonable suspicion that appellant was driving while impaired. Appellant also

alleged that his arrest was without probable cause and that the HGN test was not

conducted in compliance with NHTSA standards. Appellee filed a response to the same

on January 10, 2017. A hearing on the motion was held on January 10, 2017.

{¶4} At the hearing, Deputy Phillip Flahive of the Delaware County Sheriff’s

Office testified that he was in uniform in a stationary marked cruiser at approximately 4:00

a.m. on October 23, 2016 when he observed a vehicle traveling westbound on Home

Road. The vehicle was completely occupied and all of the occupants “maintained a [Cite as In re J.M., 2017-Ohio-7599.]

straight forward visual” as they passed the Deputy. Transcript of Suppression Hearing at

10. As the vehicle passed him, Deputy Flahive pulled out and followed the vehicle and

noticed at that time that the vehicle’s right turn signal was activated. According to the

Deputy, the vehicle proceeded to slow down and started to drift off of the roadway into the

grass and “it essentially picked a driveway and proceeded down the driveway.” Transcript

of Suppression Hearing at 11. Deputy Flahive conducted a registration check on the

vehicle and found out that it was registered to a different part of the county. He testified

that he did not stop the vehicle at that time.

{¶5} Deputy Flahive then pulled into the driveway of a local business, turned the

lights on his cruiser off and waited to see if the vehicle reappeared. According to him, a

very short time later, the vehicle passed him again while traveling westbound on Home

Road with the same number of occupants. After the vehicle passed him, Deputy Flahive

turned his headlights on and continued following the vehicle. He testified that when he

pulled out, the vehicle activated a left turn signal and turned down Bridlespur Lane, a dead

end street, while accelerating. Deputy Flahive testified that he observed the vehicle pull

into a driveway and the lights of the vehicle go out. When asked how far the vehicle pulled

into the driveway, he testified that it was approximately 25-30 feet from the roadway and

that the driveway was substantially longer.

{¶6} Deputy Flahive then activated his red and blue overhead lights and pulled

in behind where the vehicle was stopped. He then approached the vehicle and spoke with

appellant, the driver. The following testimony was adduced when Deputy Flahive was

asked about appellant’s demeanor: [Cite as In re J.M., 2017-Ohio-7599.]

A: More or less excitable. He was kind of all over the map when I was

speaking to him. He was very, um, wanted very much to hand, get, hand

me his license almost immediately upon speaking with him. Um, asked to

exit the vehicle. Um, it was kind of a roller coaster with how he was acting.

He was very excited or excitable I guess is how you should describe it.

Nervous demeanor too as well with speaking to me.

{¶7} Transcript of Suppression Hearing at 21-22. Deputy Flahive further testified

that upon speaking with the occupants of the vehicle, he detected an odor of alcoholic

beverages coming from the vehicle. None of the vehicle’s occupants, who were all under

18 years old, had identification on them and a Taser was in the center console of the

vehicle. Appellant, according to Deputy Flahive, indicated that he was nervous because

“people keep tripping in the car.” Transcript of Suppression Hearing at 25.

{¶8} Once back up assistance arrived, appellant and the other occupants of the

vehicle were asked to exit the vehicle. Deputy Flahive spoke with appellant and observed

that he had bloodshot, glassy eyes and had an odor of alcoholic beverage coming from

his breath. Appellant also appeared to be somewhat unsteady on his feet. Appellant,

when asked, denied that he had been drinking but then indicated that he was the

designated driver. When questioned about the odor of alcohol in the vehicle, appellant

then blamed the passengers. Deputy Flahive had appellant submit to an HGN test. He

testified that appellant exhibited six out of six clues on the test. Appellant was then

arrested for OVI.

{¶9} On cross-examination, Deputy Flahive testified that he found it “unusual that

all heads were straight ahead and that the vehicle was occupied multiple times at this [Cite as In re J.M., 2017-Ohio-7599.]

time of the morning.” Transcript of Suppression Hearing at 53. He further testified that

the vehicle had traveled a tire width off of the roadway when pulling into the first driveway.

{¶10} The trial court, pursuant to a Judgment Entry filed on January 20, 2017,

denied appellant’s Motion to Suppress. Thereafter, on January 26, 2017, appellant

entered a plea of no contest to one count of OVI and one count of underage consumption.

As memorialized in a Judgment Entry filed on January 27, 2017, appellant was

adjudicated a traffic offender on the OVI charge and a delinquent child on the underage

consumption charge. The remaining charge was dismissed. A Nunc Pro Tunc Judgment

Entry was filed on February 1, 2017. Following the disposition hearing on February 14,

2017, a Judgment Entry Disposition was filed on the same day.

{¶11} Appellant now raises the following assignment of error on appeal:

{¶12} I. THE TRIAL COURT ERRED BY FINDING THAT APPELLANT’S

DRIVING CONSTITUTED REASONABLE AND ARTICULABLE SUSPICION TO

BELIEVE A CRIME HAD BEEN COMMITTED AND THUS OVERRULING HIS MOTION

TO SUPPRESS.

I

{¶13} Appellant, in his sole assignment of error, argues that the trial court erred in

denying his Motion to Suppress. We disagree.

{¶14} There are three methods of challenging on appeal a trial court's ruling on a

motion to suppress. First, an appellant may challenge the trial court's findings of fact. In

reviewing a challenge of this nature, an appellate court must determine whether said

findings of fact are against the manifest weight of the evidence. State v. Fanning, 1 Ohio

St.3d 19, 437 N.E.2d 583 (1982); State v. Klein, 73 Ohio App.3d 486, 597 N.E.2d [Cite as In re J.M., 2017-Ohio-7599.]

1141(4th Dist.1991); State v. Guysinger, 86 Ohio App.3d 592, 621 N.E.2d 726(4th

Dist.1993). Second, an appellant may argue the trial court failed to apply the appropriate

test or correct law to the findings of fact. In that case, an appellate court can reverse the

trial court for committing an error of law. State v. Williams, 86 Ohio App.3d 37, 619 N.E.2d

1141 (1993). Finally, assuming the trial court's findings of fact are not against the manifest

weight of the evidence and it has properly identified the law to be applied, an appellant

may argue the trial court has incorrectly decided the ultimate or final issue raised in the

motion to suppress. When reviewing this type of claim, an appellate court must

independently determine, without deference to the trial court's conclusion, whether the

facts meet the appropriate legal standard in any given case. State v. Curry, 95 Ohio

App.3d 93, 641 N.E.2d 1172 (8th Dist.1994); State v. Claytor, 85 Ohio App.3d 623, 620

N.E.2d 906 (4th Dist.1993); Guysinger, supra. As the United States Supreme Court held

in Ornelas v. U.S., 517 U.S. 690, 116 S.Ct. 1657, 1663, 134 L.Ed.2d 911 (1996), “[A]s a

general matter determinations of reasonable suspicion and probable cause should be

reviewed de novo on appeal.”

{¶15} Appellant specifically argues that Deputy Flahive lacked reasonable and

articulable suspicion to stop appellant's vehicle. The Ohio Supreme Court has

emphasized that probable cause is not required to make a traffic stop; rather, the standard

is reasonable and articulable suspicion. State v. Mays, 119 Ohio St.3d 406, 2008–Ohio–

4539, 894 N.E.2d 1204, ¶ 23. Before a law enforcement officer may stop a vehicle, the

officer must have a reasonable suspicion, based upon specific and articulable facts that

an occupant is or has been engaged in criminal activity. Terry v. Ohio, 392 U.S. 1, 22, 88

S.Ct. 1868, 20 L.E.2d 889 (1968). Reasonable suspicion constitutes something less than [Cite as In re J.M., 2017-Ohio-7599.]

probable cause. State v. Carlson, 102 Ohio App.3d 585, 590, 657 N.E.2d 591 (9th

Dist.1995). The propriety of an investigative stop must be viewed in light of the totality of

the circumstances. State v. Bobo, 37 Ohio St.3d 177, 524 N.E.2d 489 (1988), paragraph

one of the syllabus.

{¶16} Appellee contends that appellant committed a marked lanes violation by

driving his vehicle off the side of the roadway after first passing Deputy Flahive and that

the traffic stop was justified by such violation. Appellee maintains that “even the deputy

did not think this was a traffic violation because he did not stop the vehicle at that time but

went on.” However, as noted by the trial court, even absent the traffic violation, Deputy

Flahive had reasonable and articulable suspicion to stop appellant’s vehicle for purposes

of investigation. Appellant was observed driving at 4:00 a.m. with a vehicle full of

passengers. All of the vehicle’s occupants were looking straight ahead as appellant’s

vehicle passed the cruiser. Once Deputy Flahive pulled in behind appellant’s vehicle,

appellant immediately activated his right turn signal and pulled into a driveway. Shortly

thereafter, Deputy Flahive observed the same vehicle pass him with the same number of

passengers. When he pulled behind appellant’s vehicle again, appellant immediately

signaled a turn and accelerated. Appellant turned into a residential driveway on a dead

end street and then turned out the vehicle’s lights. Deputy Flahive testified that appellant’s

vehicle was 25-30 feet from the roadway and far from the house or garage. We concur

with the trial court that appellant’s furtive behavior combined with the fact that appellant

pulled into the far end of a residential driveway and immediately darkened his lights

provided Deputy Flahive with reasonable and articulable suspicion. {¶17} Based on the foregoing, we find that the trial court did not err in denying

appellant’s Motion to Suppress.

{¶18} Appellant’s sole assignment of error is, therefore, overruled.

{¶19} Accordingly, the judgment of the Delaware County Court of Common Pleas,

Juvenile Division, is affirmed.

By: Baldwin, J.

John Wise, J. concur.

Delaney, P.J. concurs separately. Delaware County, Case No. 17 CAF 03 0015 9

Delaney, P.J., concurs separately

{¶20} I concur with the majority’s disposition of appellant’s sole assignment of error

but for a different reason.

{¶21} I agree with the trial court’s finding there existed probable cause to stop

appellant’s vehicle for a marked lanes violation, albeit a de minimis violation.

{¶22} However, I disagree with the majority’s conclusion in ¶16 that “even absent

the traffic violation” the deputy had a reasonable and articulable suspicion to stop

appellant’s vehicle based on “furtive behavior” and pulling into a residential driveway and

darkening the vehicle’s lights. Such conduct, even if believed, but without more, does not

indicate the occupants of the vehicle are or have been engaged in criminal activity.