[Cite as State v. Grubb, 2015-Ohio-3905.]
COURT OF APPEALS DELAWARE COUNTY, OHIO FIFTH APPELLATE DISTRICT
STATE OF OHIO : JUDGES: : Hon. William B. Hoffman, P.J. Plaintiff-Appellee : Hon. Sheila G. Farmer, J. : Hon. Patricia A. Delaney, J. -vs- : : BRIAN GRUBB : Case No. 14 CAA 11 0074 : Defendant-Appellant : OPINION
CHARACTER OF PROCEEDING: Appeal from the Court of Common Pleas, Case No. 14CR-I-01-0043-A
JUDGMENT: Affirmed
DATE OF JUDGMENT: September 23, 2015
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
BRIAN J. WALTER JEFFREY P. ULRICH 140 North Sandusky Street P.O. BOX 1977 Delaware, OH 43015 Westerville, OH 43086 Delaware County, Case No. 14 CAA 11 0074 2
Farmer, J.
{¶1} On January 31, 2014, the Delaware County Grand Jury indicted appellant,
Brian Grubb, on one count of trafficking in heroin in violation of R.C. 2925.03 and one
count of possessing heroin in violation of R.C. 2925.11. Said charges arose after
Delaware County Sheriff's Deputy, Sergeant Randy Pohl, stopped appellant after he
and Delaware County Sheriff's Deputy, Detective Shawn Wade, observed what they
believed to be a drug transaction.
{¶2} On April 23, 2014, appellant filed a motion to suppress, claiming no
probable cause to effectuate a stop. A hearing was held on September 8, 2014. By
judgment entry filed September 10, 2014, the trial court denied the motion.
{¶3} A jury trial commenced on October 30, 2014. The jury found appellant
guilty as charged. By judgment entry filed November 4, 2014, the trial court sentenced
appellant to eleven months in prison.
{¶4} Appellant filed an appeal and this matter is now before this court for
consideration. Assignment of error is as follows:
I
{¶5} "THE TRIAL COURT ERRED WHEN IT FAILED TO SUPPRESS
EVIDENCE OBTAINED BY POLICE OFFICERS AFTER A TRAFFIC STOP WHERE
THE ARRESTING OFFICERS DID NOT HAVE "REASONABLE SUSPICION" OR
PROBABLE CAUSE TO STOP THE VEHICLE AND WHERE THERE WERE NO
EXIGENT CIRCUMSTANCES TO WARRANT THE SEARCH AND QUESTIONING OF
DEFENDANT." Delaware County, Case No. 14 CAA 11 0074 3
{¶6} Appellant claims the trial court erred in denying his motion to suppress as
the arresting officers lacked reasonable suspicion of criminal behavior and probable
cause to stop his vehicle, and exigent circumstances were not present to warrant the
search and questioning of him. We disagree.
{¶7} 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 (1982); State v. Klein, 73 Ohio App.3d 486 (4th Dist.1991); State v.
Guysinger, 86 Ohio App.3d 592 (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 (4th Dist.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 (8th Dist.1994); State v. Claytor, 85
Ohio App.3d 623 (4th Dist.1993); Guysinger. As the United States Supreme Court held
in Ornelas v. U.S., 517 U.S. 690, 116 S.Ct. 1657, 1663 (1996), "…as a general matter Delaware County, Case No. 14 CAA 11 0074 4
determinations of reasonable suspicion and probable cause should be reviewed de
novo on appeal."
{¶8} In Terry v. Ohio, 392 U.S. 1, 22 (1968), the United States Supreme Court
determined that "a police officer may in appropriate circumstances and in an appropriate
manner approach a person for purposes of investigating possible criminal behavior
even though there is no probable cause to make an arrest." However, for the propriety
of a brief investigatory stop pursuant to Terry, the police officer involved "must be able
to point to specific and articulable facts which, taken together with rational inferences
from those facts, reasonably warrant that intrusion." Id. at 21. In forming reasonable
articulable suspicion, officers may "draw on their own experience and specialized
training to make inferences from and deductions about the cumulative information
available to them that 'might well elude an untrained person.' " United States v.
Arvizu, 534 U.S. 266, 273 (2002), quoting United States v. Cortez, 449 U.S. 411, 417–
418 (1981). Such an investigatory stop "must be viewed in the light of the totality of the
surrounding circumstances" presented to the police officer. State v. Freeman, 64 Ohio
St.2d 291 (1980), paragraph one of the syllabus.
{¶9} The facts surrounding the stop of the vehicle are not in dispute. The trial
court accurately summarized the facts in its September 10, 2014 judgment entry
denying the motion to suppress. The gravamen of this appeal is whether all of the
surrounding facts and circumstances of this case equate to reasonable suspicion of
criminal activity vis-á-vis appellant's theory of the observation of innocent everyday
activities. We find that reasonable suspicion existed sub judice for the following
reasons. Delaware County, Case No. 14 CAA 11 0074 5
{¶10} Both officers, Detective Wade and Sergeant Pohl, are experienced drug
investigators with over thirty-five years experience between them. September 8, 2014
T. at 6-8, 30-33. They were traveling in separate unmarked vehicles, with Detective
Wade in the lead car. Id. at 12-13, 33-34, 39. Detective Wade exited off of the highway
and observed appellant's vehicle in front of him at the light at the end of the exit ramp,
neglecting to turn right. Id. at 9, 11. Detective Wade observed appellant on a cell
phone, looking around in an exaggerated fashion. Id. at 11. Detective Wade testified
the area is a common meeting location for drug transactions because of its proximity to
the highway. Id. at 10, 27. He had been involved in investigating drug transactions in
the same area over thirty times. Id. at 10. Appellant finally turned right and the
deputies followed him. Id. at 13, 34-35. Appellant turned into a gas station and pulled
into a parking spot. Id. at 13, 35-36. Two females immediately approached the vehicle.
Id. One of the females entered the vehicle and sat in the back seat for less than two
minutes. Id. at 13-15, 37. Detective Wade recognized the other female as a known
heroin addict. Id. at 14, 21. Sergeant Pohl also testified the area was a popular spot for
drug buys. Id. at 34-35.
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[Cite as State v. Grubb, 2015-Ohio-3905.]
COURT OF APPEALS DELAWARE COUNTY, OHIO FIFTH APPELLATE DISTRICT
STATE OF OHIO : JUDGES: : Hon. William B. Hoffman, P.J. Plaintiff-Appellee : Hon. Sheila G. Farmer, J. : Hon. Patricia A. Delaney, J. -vs- : : BRIAN GRUBB : Case No. 14 CAA 11 0074 : Defendant-Appellant : OPINION
CHARACTER OF PROCEEDING: Appeal from the Court of Common Pleas, Case No. 14CR-I-01-0043-A
JUDGMENT: Affirmed
DATE OF JUDGMENT: September 23, 2015
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
BRIAN J. WALTER JEFFREY P. ULRICH 140 North Sandusky Street P.O. BOX 1977 Delaware, OH 43015 Westerville, OH 43086 Delaware County, Case No. 14 CAA 11 0074 2
Farmer, J.
{¶1} On January 31, 2014, the Delaware County Grand Jury indicted appellant,
Brian Grubb, on one count of trafficking in heroin in violation of R.C. 2925.03 and one
count of possessing heroin in violation of R.C. 2925.11. Said charges arose after
Delaware County Sheriff's Deputy, Sergeant Randy Pohl, stopped appellant after he
and Delaware County Sheriff's Deputy, Detective Shawn Wade, observed what they
believed to be a drug transaction.
{¶2} On April 23, 2014, appellant filed a motion to suppress, claiming no
probable cause to effectuate a stop. A hearing was held on September 8, 2014. By
judgment entry filed September 10, 2014, the trial court denied the motion.
{¶3} A jury trial commenced on October 30, 2014. The jury found appellant
guilty as charged. By judgment entry filed November 4, 2014, the trial court sentenced
appellant to eleven months in prison.
{¶4} Appellant filed an appeal and this matter is now before this court for
consideration. Assignment of error is as follows:
I
{¶5} "THE TRIAL COURT ERRED WHEN IT FAILED TO SUPPRESS
EVIDENCE OBTAINED BY POLICE OFFICERS AFTER A TRAFFIC STOP WHERE
THE ARRESTING OFFICERS DID NOT HAVE "REASONABLE SUSPICION" OR
PROBABLE CAUSE TO STOP THE VEHICLE AND WHERE THERE WERE NO
EXIGENT CIRCUMSTANCES TO WARRANT THE SEARCH AND QUESTIONING OF
DEFENDANT." Delaware County, Case No. 14 CAA 11 0074 3
{¶6} Appellant claims the trial court erred in denying his motion to suppress as
the arresting officers lacked reasonable suspicion of criminal behavior and probable
cause to stop his vehicle, and exigent circumstances were not present to warrant the
search and questioning of him. We disagree.
{¶7} 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 (1982); State v. Klein, 73 Ohio App.3d 486 (4th Dist.1991); State v.
Guysinger, 86 Ohio App.3d 592 (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 (4th Dist.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 (8th Dist.1994); State v. Claytor, 85
Ohio App.3d 623 (4th Dist.1993); Guysinger. As the United States Supreme Court held
in Ornelas v. U.S., 517 U.S. 690, 116 S.Ct. 1657, 1663 (1996), "…as a general matter Delaware County, Case No. 14 CAA 11 0074 4
determinations of reasonable suspicion and probable cause should be reviewed de
novo on appeal."
{¶8} In Terry v. Ohio, 392 U.S. 1, 22 (1968), the United States Supreme Court
determined that "a police officer may in appropriate circumstances and in an appropriate
manner approach a person for purposes of investigating possible criminal behavior
even though there is no probable cause to make an arrest." However, for the propriety
of a brief investigatory stop pursuant to Terry, the police officer involved "must be able
to point to specific and articulable facts which, taken together with rational inferences
from those facts, reasonably warrant that intrusion." Id. at 21. In forming reasonable
articulable suspicion, officers may "draw on their own experience and specialized
training to make inferences from and deductions about the cumulative information
available to them that 'might well elude an untrained person.' " United States v.
Arvizu, 534 U.S. 266, 273 (2002), quoting United States v. Cortez, 449 U.S. 411, 417–
418 (1981). Such an investigatory stop "must be viewed in the light of the totality of the
surrounding circumstances" presented to the police officer. State v. Freeman, 64 Ohio
St.2d 291 (1980), paragraph one of the syllabus.
{¶9} The facts surrounding the stop of the vehicle are not in dispute. The trial
court accurately summarized the facts in its September 10, 2014 judgment entry
denying the motion to suppress. The gravamen of this appeal is whether all of the
surrounding facts and circumstances of this case equate to reasonable suspicion of
criminal activity vis-á-vis appellant's theory of the observation of innocent everyday
activities. We find that reasonable suspicion existed sub judice for the following
reasons. Delaware County, Case No. 14 CAA 11 0074 5
{¶10} Both officers, Detective Wade and Sergeant Pohl, are experienced drug
investigators with over thirty-five years experience between them. September 8, 2014
T. at 6-8, 30-33. They were traveling in separate unmarked vehicles, with Detective
Wade in the lead car. Id. at 12-13, 33-34, 39. Detective Wade exited off of the highway
and observed appellant's vehicle in front of him at the light at the end of the exit ramp,
neglecting to turn right. Id. at 9, 11. Detective Wade observed appellant on a cell
phone, looking around in an exaggerated fashion. Id. at 11. Detective Wade testified
the area is a common meeting location for drug transactions because of its proximity to
the highway. Id. at 10, 27. He had been involved in investigating drug transactions in
the same area over thirty times. Id. at 10. Appellant finally turned right and the
deputies followed him. Id. at 13, 34-35. Appellant turned into a gas station and pulled
into a parking spot. Id. at 13, 35-36. Two females immediately approached the vehicle.
Id. One of the females entered the vehicle and sat in the back seat for less than two
minutes. Id. at 13-15, 37. Detective Wade recognized the other female as a known
heroin addict. Id. at 14, 21. Sergeant Pohl also testified the area was a popular spot for
drug buys. Id. at 34-35. He observed "some kind of a transaction" between appellant
and the female in the vehicle. Id. at 36-37. After the female exited the vehicle,
appellant drove out of the gas station without ever going into the store or getting any
services, and Sergeant Pohl followed him and stopped him. Id. at 16, 18, 21, 38-39.
The females entered the store and went to the restroom. Id. at 15-17. When they
returned to their vehicle, Detective Wade stopped them. Id. at 19.
{¶11} Both officers opined they believed they had witnessed a drug transaction
based upon the area as a known drug buy location, appellant's exaggerated movements Delaware County, Case No. 14 CAA 11 0074 6
while on the cell phone, the identification of one of the females as a known heroin
addict, and the quick meeting in the vehicle. Id. at 10-12, 14-15, 27, 34-35, 39.
{¶12} All of these known facts, as well as the testimony of two very experienced
drug enforcement officers, lead to the conclusion of a reasonable suspicion of criminal
behavior. Although parts of the transaction are susceptible to an innocent
interpretation, the totality of all the facts equate to a reasonable articulable suspicion.
{¶13} Upon review, we find the trial court did not err in denying appellant's
motion to suppress.
{¶14} The sole assignment of error is denied.
{¶15} The judgment of the Court of Common Pleas of Delaware County, Ohio is
hereby affirmed.
By Farmer, J.
Hoffman, P.J. and
Delaney, J. concur.
SGF/sg 824