[Cite as State v. Brooks, 2014-Ohio-3343.] IN THE COURT OF APPEALS OF OHIO FOURTH APPELLATE DISTRICT ATHENS COUNTY
STATE OF OHIO, :
Plaintiff-Appellee, : Case No. 13CA37
vs. :
RAYMOND BROOKS, : DECISION AND JUDGMENT ENTRY
Defendant-Appellant. :
______________________________________________________________
APPEARANCES:
COUNSEL FOR APPELLANT: Adam J. Baker, Adam J. Baker, Attorney & Counselor At Law, LLC, 8 North Court Street, Ste. 212, Athens, Ohio 45701
COUNSEL FOR APPELLEE: Patrick J. Lang, Athens City Law Director, and James K. Stanley, Athens City Prosecutor, Law Administration Building, 8 East Washington Street, Ste. 301, Athens, Ohio 45701
_________________________________________________________________ CRIMINAL APPEAL FROM MUNICIPAL COURT DATE JOURNALIZED:7-21-14 ABELE, P.J.
{¶ 1} This is an appeal from an Athens County Municipal Court judgment of conviction
and sentence. Raymond Brooks, defendant below and appellant herein, pled “no contest” to a
charge of operating a motor vehicle while under the influence of alcohol in violation of R.C.
4511.19(A)(1)(d). Appellant assigns the following errors for review:
FIRST ASSIGNMENT OF ERROR: [Cite as State v. Brooks, 2014-Ohio-3343.] “THE TRIAL COURT ERRED IN FINDING THAT THE ARRESTING OFFICER HAD A REASONABLE AND ARTICULABLE SUSPICION IN ORDER TO INITIATE A TRAFFIC STOP OF APPELLANT.”
SECOND ASSIGNMENT OF ERROR:
“THE TRIAL COURT ERRED IN FINDING THAT THERE WAS PROBABLE CAUSE TO ARREST THE APPELLANT FOR OPERATING A MOTOR VEHICLE UNDER THE INFLUENCE.”
{¶ 2} Sometime after midnight on June 1, 2013, appellant drove a white Subaru to the
fast-food pick-up lane at Wendy’s restaurant on Richland Avenue in Athens. When asked for
his order, appellant apparently responded to the intercom that he wanted a “beer.”1 Tracy
Gribble, a Wendy's employee, called the Athens Police Department to report a drunk driver.
Officer Nick Magruder arrived a few minutes later while the white Subaru remained at the
pick-up window.
{¶ 3} Officer Magruder parked and exited his vehicle, and walked to appellant’s car to
speak with him. When Magruder approached the passenger side window, he observed a beer
sitting on the vehicle's console. Magruder then instructed appellant to move from the
drive-through window to a curb about twenty feet away.
{¶ 4} When Officer Magruder explained to appellant that someone had reported him as
being intoxicated, appellant responded that “he wasn’t drunk and he just had, he just had a six
pack.” Magruder then asked appellant to exit the vehicle. At this point, the officer noted that
appellant had “red, watery eyes” and seemed unsteady on his feet. Additional conversation also
1 Although most of our factual recitation comes from a transcript of the July 23, 2013 suppression hearing, where that transcript is unclear, as it is on this factual point, we also use the trial court’s findings and conclusion in its July 25, 2013 “Decision and Journal Entry.” ATHENS, 13CA37 3
revealed “slurred speech.” The officer also asked appellant to perform field sobriety tests and
after appellant declined, Magruder placed appellant under arrest and transported him to “Post
Five” where a “BAC Datamaster” test indicated appellant's breath alcohol content of .101 grams
per two hundred ten liters of breath.
{¶ 5} Subsequently, appellant filed a motion to suppress evidence that set forth a number
of arguments, including (1) Officer Magruder’s approach to his vehicle was unconstitutional, and
(2) the arrest for violating R.C. 4511.19(A)(1) lacked probable cause. The matter came on for a
hearing, at which time Officer Magruder testified concerning the encounter.
{¶ 6} The trial court filed a detailed decision and judgment on July 25, 2013 that denied
appellant’s motion. In so doing, the court ruled, inter alia, that (1) Officer Magruder’s first
contact with appellant at the drive-through window was not an actual traffic stop that implicated
constitutional considerations, and (2) Officer Magruder had sufficient probable cause to arrest
appellant for a violation of R.C. 4511.19(A)(1).
{¶ 7} Appellant later pled no contest to a violation of R.C. 4511.19(A)(1)(d). The trial
court dismissed the charge of violating subsection (A)(1)(a) and sentenced appellant to a
suspended thirty day jail sentence and a partially suspended $725 fine. This appeal followed.
I
{¶ 8} The gist of appellant's two assignments of error is that the trial court erred by
overruling his motion to suppress evidence. Before we address their particular merits, we set
forth the appropriate standard of review.
{¶ 9} Appellate review of a decision and judgment on a motion to suppress evidence
involves mixed questions of law and fact. State v. Grubb, 186 Ohio App.3d 744, 2010-Ohio-1265, ATHENS, 13CA37 4
930 N.E.2d 380, at ¶12 (3rd Dist.); State v. Book, 165 Ohio App.3d 511, 2006-Ohio-1102, 847
N.E.2d 52, at ¶9 (4th Dist.). In hearing such motions, a trial court assumes the role of the trier of
fact and is best situated to resolve factual disputes and to evaluate witness credibility. State v.
Roberts, 110 Ohio St.3d 71, 2006-Ohio-3665, 850 N.E.2d 1168, at ¶100; State v. Burnside, 100
Ohio St.3d 152, 2003-Ohio-5372, 797 N.E.2d 71, at ¶8.
{¶ 10} Appellate courts will accept a trial court's factual findings if competent, credible
evidence exists to support those findings. State v. Little, 183 Ohio App.3d 680, 2009-Ohio-4403,
918 N.E.2d 230, at ¶15 (2nd Dist.); State v. Metcalf, 111 Ohio App.3d 142, 145, 675 N.E.2d 1268
(4th Dist. 1996). However, appellate courts review de novo a trial court's application of law to
those facts. State v. Higgins, 183 Ohio App.3d 465, 2009-Ohio-3979, 917 N.E.2d 363, at ¶14 (5th
Dist.); State v. Poole, 185 Ohio App.3d 38, 2009- Ohio-5634, 923 N.E.2d 167, at ¶18 (11th Dist.).
In other words, an appellate court affords no deference to a trial court in its application of the law
to the facts of the case.
II
{¶ 11} In his first assignment of error, appellant asserts that the trial court erred by finding
that Officer Magruder had a reasonable and articulable suspicion of criminal activity to “stop” his
car.
{¶ 12} The Fourth Amendment to the United States Constitution protects the rights of
people to be secure against unreasonable searches and seizures. These protections are applicable
to the states through the Fourteenth Amendment Due Process Clause, Smith v. Maryland, 442
U.S. 735, 736, 99 S.Ct. 2577, 61 L.Ed.2d 220 (1979); Mapp v. Ohio, 367 U.S. 643, 655, 81 S.Ct.
1684, 6 L.Ed.2d 1081 (1961), Section 14, Article I, of the Ohio Constitution affords the same ATHENS, 13CA37 5
protection. State v. Johnson, 4th Dist. Highland No. 06CA36, 2007-Ohio-4158 at ¶8; State v.
Jaeger, 4th Dist. No. Washington No. 92CA30, 1993 WL 248605 (Jul. 9, 1993).
{¶ 13} Not every contact between law enforcement and citizenry is of constitutional
dimension.
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[Cite as State v. Brooks, 2014-Ohio-3343.] IN THE COURT OF APPEALS OF OHIO FOURTH APPELLATE DISTRICT ATHENS COUNTY
STATE OF OHIO, :
Plaintiff-Appellee, : Case No. 13CA37
vs. :
RAYMOND BROOKS, : DECISION AND JUDGMENT ENTRY
Defendant-Appellant. :
______________________________________________________________
APPEARANCES:
COUNSEL FOR APPELLANT: Adam J. Baker, Adam J. Baker, Attorney & Counselor At Law, LLC, 8 North Court Street, Ste. 212, Athens, Ohio 45701
COUNSEL FOR APPELLEE: Patrick J. Lang, Athens City Law Director, and James K. Stanley, Athens City Prosecutor, Law Administration Building, 8 East Washington Street, Ste. 301, Athens, Ohio 45701
_________________________________________________________________ CRIMINAL APPEAL FROM MUNICIPAL COURT DATE JOURNALIZED:7-21-14 ABELE, P.J.
{¶ 1} This is an appeal from an Athens County Municipal Court judgment of conviction
and sentence. Raymond Brooks, defendant below and appellant herein, pled “no contest” to a
charge of operating a motor vehicle while under the influence of alcohol in violation of R.C.
4511.19(A)(1)(d). Appellant assigns the following errors for review:
FIRST ASSIGNMENT OF ERROR: [Cite as State v. Brooks, 2014-Ohio-3343.] “THE TRIAL COURT ERRED IN FINDING THAT THE ARRESTING OFFICER HAD A REASONABLE AND ARTICULABLE SUSPICION IN ORDER TO INITIATE A TRAFFIC STOP OF APPELLANT.”
SECOND ASSIGNMENT OF ERROR:
“THE TRIAL COURT ERRED IN FINDING THAT THERE WAS PROBABLE CAUSE TO ARREST THE APPELLANT FOR OPERATING A MOTOR VEHICLE UNDER THE INFLUENCE.”
{¶ 2} Sometime after midnight on June 1, 2013, appellant drove a white Subaru to the
fast-food pick-up lane at Wendy’s restaurant on Richland Avenue in Athens. When asked for
his order, appellant apparently responded to the intercom that he wanted a “beer.”1 Tracy
Gribble, a Wendy's employee, called the Athens Police Department to report a drunk driver.
Officer Nick Magruder arrived a few minutes later while the white Subaru remained at the
pick-up window.
{¶ 3} Officer Magruder parked and exited his vehicle, and walked to appellant’s car to
speak with him. When Magruder approached the passenger side window, he observed a beer
sitting on the vehicle's console. Magruder then instructed appellant to move from the
drive-through window to a curb about twenty feet away.
{¶ 4} When Officer Magruder explained to appellant that someone had reported him as
being intoxicated, appellant responded that “he wasn’t drunk and he just had, he just had a six
pack.” Magruder then asked appellant to exit the vehicle. At this point, the officer noted that
appellant had “red, watery eyes” and seemed unsteady on his feet. Additional conversation also
1 Although most of our factual recitation comes from a transcript of the July 23, 2013 suppression hearing, where that transcript is unclear, as it is on this factual point, we also use the trial court’s findings and conclusion in its July 25, 2013 “Decision and Journal Entry.” ATHENS, 13CA37 3
revealed “slurred speech.” The officer also asked appellant to perform field sobriety tests and
after appellant declined, Magruder placed appellant under arrest and transported him to “Post
Five” where a “BAC Datamaster” test indicated appellant's breath alcohol content of .101 grams
per two hundred ten liters of breath.
{¶ 5} Subsequently, appellant filed a motion to suppress evidence that set forth a number
of arguments, including (1) Officer Magruder’s approach to his vehicle was unconstitutional, and
(2) the arrest for violating R.C. 4511.19(A)(1) lacked probable cause. The matter came on for a
hearing, at which time Officer Magruder testified concerning the encounter.
{¶ 6} The trial court filed a detailed decision and judgment on July 25, 2013 that denied
appellant’s motion. In so doing, the court ruled, inter alia, that (1) Officer Magruder’s first
contact with appellant at the drive-through window was not an actual traffic stop that implicated
constitutional considerations, and (2) Officer Magruder had sufficient probable cause to arrest
appellant for a violation of R.C. 4511.19(A)(1).
{¶ 7} Appellant later pled no contest to a violation of R.C. 4511.19(A)(1)(d). The trial
court dismissed the charge of violating subsection (A)(1)(a) and sentenced appellant to a
suspended thirty day jail sentence and a partially suspended $725 fine. This appeal followed.
I
{¶ 8} The gist of appellant's two assignments of error is that the trial court erred by
overruling his motion to suppress evidence. Before we address their particular merits, we set
forth the appropriate standard of review.
{¶ 9} Appellate review of a decision and judgment on a motion to suppress evidence
involves mixed questions of law and fact. State v. Grubb, 186 Ohio App.3d 744, 2010-Ohio-1265, ATHENS, 13CA37 4
930 N.E.2d 380, at ¶12 (3rd Dist.); State v. Book, 165 Ohio App.3d 511, 2006-Ohio-1102, 847
N.E.2d 52, at ¶9 (4th Dist.). In hearing such motions, a trial court assumes the role of the trier of
fact and is best situated to resolve factual disputes and to evaluate witness credibility. State v.
Roberts, 110 Ohio St.3d 71, 2006-Ohio-3665, 850 N.E.2d 1168, at ¶100; State v. Burnside, 100
Ohio St.3d 152, 2003-Ohio-5372, 797 N.E.2d 71, at ¶8.
{¶ 10} Appellate courts will accept a trial court's factual findings if competent, credible
evidence exists to support those findings. State v. Little, 183 Ohio App.3d 680, 2009-Ohio-4403,
918 N.E.2d 230, at ¶15 (2nd Dist.); State v. Metcalf, 111 Ohio App.3d 142, 145, 675 N.E.2d 1268
(4th Dist. 1996). However, appellate courts review de novo a trial court's application of law to
those facts. State v. Higgins, 183 Ohio App.3d 465, 2009-Ohio-3979, 917 N.E.2d 363, at ¶14 (5th
Dist.); State v. Poole, 185 Ohio App.3d 38, 2009- Ohio-5634, 923 N.E.2d 167, at ¶18 (11th Dist.).
In other words, an appellate court affords no deference to a trial court in its application of the law
to the facts of the case.
II
{¶ 11} In his first assignment of error, appellant asserts that the trial court erred by finding
that Officer Magruder had a reasonable and articulable suspicion of criminal activity to “stop” his
car.
{¶ 12} The Fourth Amendment to the United States Constitution protects the rights of
people to be secure against unreasonable searches and seizures. These protections are applicable
to the states through the Fourteenth Amendment Due Process Clause, Smith v. Maryland, 442
U.S. 735, 736, 99 S.Ct. 2577, 61 L.Ed.2d 220 (1979); Mapp v. Ohio, 367 U.S. 643, 655, 81 S.Ct.
1684, 6 L.Ed.2d 1081 (1961), Section 14, Article I, of the Ohio Constitution affords the same ATHENS, 13CA37 5
protection. State v. Johnson, 4th Dist. Highland No. 06CA36, 2007-Ohio-4158 at ¶8; State v.
Jaeger, 4th Dist. No. Washington No. 92CA30, 1993 WL 248605 (Jul. 9, 1993).
{¶ 13} Not every contact between law enforcement and citizenry is of constitutional
dimension. The United States Supreme Court recognizes three categories of police-citizen
interactions: (1) consensual encounters, (2) investigative or “Terry” type stops, and (3) arrests.
State v. Williams, 4th Dist. Ross No. No. 10CA3162, 2011-Ohio-763, at ¶8; also see State v.
Travis, 4th Dist. Scioto No. 06CA3098, 2008–Ohio–1042, at ¶9, citing Florida v. Royer (1983),
460 U.S. 491, 501–507, 103 S.Ct. 1319, 75 L.E.2d 229 and United States v. Mendenhall (1980),
446 U.S. 544, 553, 100 S.Ct. 1870, 64 L.E.2d 497.
{¶ 14} Appellant’s argument characterizes the appearance of Officer Magruder at
Wendy’s, and his approach of appellant’s car, as a “Terry” investigative stop that did not satisfy
the requisite constitutional requirements. We need not, and do not, go into great detail of what is
needed for an investigative stop under Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889
(1968). However, to have a Terry stop there must be an actual stop of a vehicle. Here, as the
trial court noted in its decision, no traffic stop occurred. Rather, appellant had already stopped
his vehicle (of his own volition) at the drive-through window. Officer Magruder simply
approached appellant's vehicle on foot to engage him in conversation. Police may lawfully
initiate a consensual encounter without either probable cause or a reasonable, articulable suspicion
of criminal activity. State v. Jones, 4th Dist. Washington No. 11CA13, 2012-Ohio-1523, at ¶9.
An encounter is consensual when an officer approaches a person in a public place, engages the
person in conversation, requests information, and the person is free to not answer and walk away.
Id. The mere approach and questioning of the person seated within a parked vehicle does not ATHENS, 13CA37 6
constitute a seizure but, rather, is a consensual encounter. Id.
{¶ 15} Appellant’s brief appears to couch the circumstances of the “stop” as Officer
Magruder “show[ing] up at the Wendy’s[.]” However, Magruder's contact with appellant at that
point was a consensual encounter, not an investigative stop. Magruder testified at the
suppression hearing that Wendy’s employees talked with appellant at the pick-up window and the
officer simply walked to the vehicle, in a public space, and engaged appellant in conversation.
No evidence adduced at the hearing indicated that appellant lacked freedom of movement at that
time. Only after Officer Magruder observed the beer on appellant’s console did the officer
instruct appellant to proceed to the curb.
{¶ 16} Therefore, we agree with the trial court's conclusion that Officer Magruder’s
appearance at Wendy’s, and his initial approach of the vehicle, was not a Terry investigative stop
and does not rise to a level that raises constitutional concerns. Accordingly, we hereby overrule
appellant's first assignment of error.
III
{¶ 17} Appellant’s second assignment of error asserts that the trial court erred in its
conclusion that Officer Magruder had a sufficient basis (probable cause) for his arrest. We
disagree with appellant.
{¶ 18} An arrest is valid when an arresting officer has probable cause to believe that an
arrestee has committed a crime. See State v. Timson, 38 Ohio St.2d 122, 311 N.E.2d 16, paragraph
one of the syllabus (1974); also see State v. Martin, 4th Dist. Pickaway No. 04CA29, ATHENS, 13CA37 7
2005-Ohio-4477, at ¶16. A determination of whether probable cause to arrest exists must be
based on an examination of the totality of the circumstances. See Regets v. City of Plymouth, 6th
Cir. No. 13–1574, 2014 WL 2596562 (Jun. 10, 2014); also see State v. Rabe, 12th Dist. Clermont
No. CA2013–09–068, 2014-Ohio-2008, at ¶20. Further, we have held that if an arrest is based on
a violation of R.C. 4511.19(A)(1), probable cause for an arrest exists if a law enforcement officer
observes indicia of both alcohol consumption and, inter alia, impaired coordination. State v.
Chevalier, 4th Dist. Washington No. 09CA49, 2010-Ohio-4096, at ¶9; State v. Posey, 4th Dist.
Pickaway No. 07CA24, 2008-Ohio-6510, at ¶13. In the case sub judice, the evidence adduced at
the suppression hearing revealed that although Officer Magruder did not observe appellant violate
any traffic laws, Magruder observed an open beer sitting on the vehicle's console and appellant
admitted that he “just had a six pack.” More important, Officer Magruder observed that appellant
had red, glassy eyes and slurred speech. When he asked appellant to exit the vehicle, he appeared
“unsteady” and placed his hand on the vehicle for balance. We readily agree with the trial court's
conclusion that the totality of these circumstances sufficiently established probable cause for an
arrest under R.C. 4511.19(A)(1).
{¶ 19} Therefore, we hereby overrule appellant's second assignment of error and affirm
the trial court's judgment.
JUDGMENT AFFIRMED. [Cite as State v. Brooks, 2014-Ohio-3343.] JUDGMENT ENTRY
It is ordered that the judgment be affirmed and that appellee recover of appellant the costs herein taxed.
The Court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this Court directing the Athens County Municipal Court to carry this judgment into execution.
If a stay of execution of sentence and release upon bail has been previously granted, it is continued for a period of sixty days upon the bail previously posted. The purpose of said stay is to allow appellant to file with the Ohio Supreme Court an application for a stay during the pendency of the proceedings in that court. The stay as herein continued will terminate at the expiration of the sixty day period.
The stay will also terminate if appellant fails to file a notice of appeal with the Ohio Supreme Court in the forty-five day period pursuant to Rule II, Sec. 2 of the Rules of Practice of the Ohio Supreme Court. Additionally, if the Ohio Supreme Court dismisses the appeal prior to the expiration of said sixty days, the stay will terminate as of the date of such dismissal.
A certified copy of this entry shall constitute that mandate pursuant to Rule 27 of the Rules of Appellate Procedure.
Harsha, J. & Hoover, J.: Concur in Judgment & Opinion
For the Court
BY: Peter B. Abele Presiding Judge
NOTICE TO COUNSEL Pursuant to Local Rule No. 14, this document constitutes a final judgment entry and the time period for further appeal commences from the date of filing with the clerk.