State v. Stout

2021 Ohio 1125

• Court: Ohio Court of Appeals
• Decided: April 5, 2021
• Docket: CA2020-08-085
• Status: Published

Opinion

[Cite as State v. Stout, 2021-Ohio-1125.]

IN THE COURT OF APPEALS

TWELFTH APPELLATE DISTRICT OF OHIO

BUTLER COUNTY

STATE OF OHIO, :

Appellee, : CASE NO. CA2020-08-085

: OPINION - vs - 4/5/2021 :

JOSEPH DONALD STOUT, :

Appellant. :

CRIMINAL APPEAL FROM BUTLER COUNTY COURT OF COMMON PLEAS Case No. CR2019-12-1951

Michael T. Gmoser, Butler County Prosecuting Attorney, Willa Concannon, Government Services Center, 315 High Street, 11th Floor, Hamilton, Ohio 45011, for appellee

Engel & Martin, LLC, Mary K. Martin, 4660 Duke Drive, Suite 101, Mason, Ohio 45040, for appellant

HENDRICKSON, J.

{¶ 1} Appellant, Joseph Donald Stout, appeals from a decision of the Butler County

Court of Common Pleas denying his motion to suppress. For the reasons stated below, we

affirm the decision of the trial court.

{¶ 2} At approximately 9:00 p.m. on November 30, 2019, Officer Joseph Kettman

of the Hamilton Police Department was driving westbound on Franklin Street in a marked Butler CA2020-08-085

police cruiser when he observed appellant riding a bicycle east on the sidewalk on Franklin

Street towards McKinley Avenue in Hamilton, Butler County, Ohio. Appellant was doing

"wheelies" and did not have a mounted light on his bicycle, despite it being dark and rainy.

{¶ 3} Officer Kettman determined appellant was in violation of a city ordinance

requiring bicycles to have a mounted light when riding on the street between sunset and

sunrise. The officer decided to stop appellant for this violation. However, because the

officer was driving in the opposite direction of appellant, he had to drive ahead and turn his

vehicle around. When the officer caught up to appellant, appellant was still riding his bicycle

on the sidewalk on Franklin Street, but he was now between Millville Avenue and Edgewood

Avenue – a location that was two intersections away from where Officer Kettman first

observed appellant. The officer had not observed appellant operating his bicycle on the

street but stated that only "seconds * * * [n]ot more than a minute" passed between the

officer's first observation of appellant on the bicycle and his stop of appellant more than two

intersections away.

{¶ 4} After stopping appellant, Officer Kettman approached and advised appellant

that he was required to have a mounted light on his bicycle. The officer asked appellant if

he had anything illegal on him, to which appellant replied, "a knife." Officer Kettman

conducted a pat down and recovered the knife. The officer then obtained appellant's

identification and discovered that appellant had an active bench warrant for his arrest from

the Hamilton Municipal Court. Another officer who had arrived on scene placed appellant

under arrest. At this time, appellant volunteered that he had drugs in his pocket. The

arresting officer recovered methamphetamine from appellant's left pants pocket.

{¶ 5} Appellant was indicted on one count of aggravated possession of drugs in

violation of R.C. 2925.11(A), a felony of the third degree. Appellant pled not guilty to the

charge and filed a motion to suppress, arguing Officer Kettman lacked reasonable suspicion

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to stop him for a traffic violation. Appellant contended any evidence discovered after his

unlawful seizure, such as the methamphetamine discovered in his pants pocket, had to be

suppressed as fruit of the poisonous tree. The state filed a memorandum in opposition to

appellant's motion, arguing Officer Kettman had probable cause to stop appellant as he

violated Sections 373.01 and 373.06 of the Hamilton City Code by operating his bicycle on

the city's streets at night without a mounted light. The state further argued that even if there

was not probable cause for the traffic stop, suppression was not proper pursuant to the

attenuation doctrine, as the discovery of the arrest warrant served as an intervening

circumstance between the initial stop and the discovery of the contraband.

{¶ 6} A hearing on appellant's motion to suppress was held on July 9, 2020. The

state presented testimony from Officer Kettman. At the conclusion of the hearing, the trial

court denied appellant's motion to suppress, finding that the stop was "a valid investigatory

stop." The court dismissed appellant's claim that Officer Kettman did not have a valid

reason for initiating the stop as the officer had not personally observed appellant operating

the bicycle on the street but rather only on the sidewalk. In dismissing this argument, the

court stated, in relevant part:

THE COURT: Ofc. Kettman was questioned by [the prosecutor] as far as any other cross streets that the Defendant would have had to go over to get where he ultimately caught up to him near the intersection of Franklin and Millville. He identified at least McKinley, I think Edgewood, being at least two streets that [the defendant] had to cross over. So obviously, this is not a continuous sidewalk that the Defendant had to be riding on.

I appreciate Ofc. Kettman's honesty that the only time he ever observed [the defendant] he was on the sidewalk, but obviously at some point in time, to go over those cross streets, he had to be riding on the street at some point in time without a headlight on the bicycle. If this had been a situation where the officer had merely observed him riding back and forth on the sidewalk, never losing sight of him. And only having been on the sidewalk, it might be a different story. But obviously, I think at some point in time to get to where he ultimately caught up to him, [the

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defendant] had to ride on the street for a period of time when he crossed over the intersection at McKinley and at Edgewood.

The court further concluded that even if there had not been a lawful traffic stop, the

attenuation doctrine applied making suppression inapplicable as "the evidence was seized

incident to a lawful arrest."

{¶ 7} Following the denial of his motion to suppress, appellant entered a no contest

plea to the charge of aggravated possession of drugs. Appellant was sentenced to a 12-

month prison term and given 115 days of jail-time credit.

{¶ 8} Appellant timely appealed from his conviction, raising the following as his sole

assignment of error:

{¶ 9} THE TRIAL COURT ERRED IN DENYING APPELLANT'S MOTION TO

SUPPRESS.

{¶ 10} Appellant contends the trial court erred in denying his motion to suppress as

the state failed to demonstrate that the traffic stop of his bicycle was a valid investigatory

stop. Specifically, he contends that while Officer Kettman "might have had a hunch that

[he] drove his bicycle across a street without the bicycle having a headlight," the officer did

not have "reasonable articulable suspicion that this was the case" as it was possible that

appellant walked the bicycle across the street. Appellant contends suppression is the

appropriate remedy for his unlawful seizure and argues that the attenuation doctrine does

not apply under the circumstances presented in this case.

{¶ 11} "Appellate review of a ruling on a motion to suppress presents a mixed

question of law and fact." State v. Turner, Slip Opinion No. 2020-Ohio-6773, ¶ 14, citing

State v. Burnside, 100 Ohio St.3d 152, 2003-Ohio-5372, ¶ 8. The trial court, as the trier of

fact, is in the best position to weigh the evidence to resolve factual questions and to evaluate

witness credibility. State v. Vaughn, 12th Dist. Fayette No. CA2014-Ohio-05-012, 2015-

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Ohio-828, ¶ 8. Therefore, when reviewing a trial court's decision on a motion to suppress,

this court is bound to accept the trial court's findings of fact if they are supported by

competent, credible evidence. Turner at ¶ 14. "An appellate court, however, independently

reviews the trial court's legal conclusions based on those facts and determines, without

deference to the trial court's decision, whether as a matter of law, the facts satisfy the

appropriate legal standard." State v. Cochran, 12th Dist. Preble No. CA2006-10-023, 2007-

Ohio-3353, ¶ 12.

{¶ 12} The Fourth Amendment to the United States Constitution and Section 14,

Article I of the Ohio Constitution prohibit unreasonable searches and seizures. Bowling

Green v. Godwin, 110 Ohio St.3d 58, 2006-Ohio-3563, ¶ 11. "A traffic stop initiated by a

law enforcement officer implicates the Fourth Amendment and must comply with the Fourth

Amendment's general reasonableness requirement." State v. Willis, 12th Dist. Butler No.

CA2012-08-155, 2013-Ohio-2391, ¶ 18, citing Whren v. United States, 517 U.S. 806, 809,

116 S.Ct. 1769 (1996).

{¶ 13} "Where a law enforcement officer has probable cause or an articulable,

reasonable suspicion to stop a motorist for any criminal violation, including a minor traffic

violation, the stop is constitutionally valid." State v. Hentenaar, 12th Dist. Butler No.

CA2019-09-161, 2020-Ohio-4503, ¶ 9, citing Dayton v. Erickson, 76 Ohio St.3d 3, 11-12

(1996) and State v. Mays, 119 Ohio St.3d 406, 2008-Ohio-4539, ¶ 23. "Probable cause is

determined by examining the historical facts, i.e., the events leading up to a stop or search,

'viewed from the standpoint of an objectively reasonable police officer.'" Godwin, 2006-

Ohio-3563 at ¶ 14, quoting Ornelas v. United States, 517 U.S. 690, 696, 116 S.Ct. 1657

(1996). Determination of probable cause that a traffic offense has been committed, "'like

all probable cause determinations is fact dependent and will turn on what the officer knew

at the time he made the stop.'" (Emphasis sic.) Erickson at 10, quoting United States v.

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Ferguson, 8 F.3d 385, 391 (6th Cir.1993). "[E]ven a de minimis traffic violation provides

probable cause for a traffic stop." State v. Williams, 12th Dist. Clinton No. CA2009-08-014,

2010-Ohio-1523, ¶ 13. The stop of a person riding a bicycle in violation of a traffic code is

governed by these same standards. See Willis, 2013-Ohio-2391 at ¶ 18-22.

{¶ 14} Section 373.01(a) of the Hamilton City Code provides that those provisions of

the city's traffic code "that are applicable to bicycles and electric bicycles apply whenever a

bicycle or electric bicycle is operated upon any street or upon any path set aside for the

exclusive use of bicycles." Section 337.02(a)(1) of the city's code requires that "[e]very

vehicle, other than a motorized bicycle, operated upon a street or a highway shall display

lighted lights and illuminating devices as required by this chapter during * * * [t]he time from

sunset to sunrise." Section 373.06(a), in turn, provides that

Every bicycle or electric bicycle when in use at the times specified in Section 337.02 shall be equipped with the following:

(1) A lamp mounted on the front of either the bicycle or electric bicycle or the operator that shall emit a white light visible from a distance of at least five hundred feet to the front; and three hundred feet to the sides. A generator-powered lamp that emits light only when the bicycle or electric bicycle is moving may be used to meet this requirement.

(2) A red reflector on the rear that shall be visible from all distances from one hundred feet to six hundred feet to the rear when directly in front of lawful lower beams of head lamps on a motor vehicle.

(3) A lamp emitting either flashing or steady red light visible from a distance of five hundred feet to the rear shall be used in addition to the red reflector; If the lamp performs as a reflector in that it is visible as specified in subsection (a)(2) of this section, the red lamp may serve as the reflector and a separate reflector is not required.

{¶ 15} At the suppression hearing, Officer Kettman's testimony established probable

cause for the traffic stop of appellant's bicycle on the basis that appellant was operating his

bicycle on the city's streets without a mounted light in violation of Hamilton City Code

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Sections 337.02 and 373.06. The officer testified that around 9.00 p.m., after it had turned

dark outside, he observed appellant riding his bicycle eastbound on a sidewalk on Franklin

Street towards Millville Avenue. When the officer initiated the traffic stop after turning his

police cruiser around, an activity that only took "seconds" or less than a minute, appellant

was riding his bicycle on the sidewalk between Millville Avenue and Edgewood Avenue – a

location that was two intersections away from where Officer Kettman first observed

appellant. Considering the distance appellant traveled in the short amount of time it took

Officer Kettman to initiate the stop, it was objectively reasonable for the officer to believe

appellant had violated the city's bicycle-light ordinances by riding his bicycle onto the street

in order to cross the two intersections.

{¶ 16} As for appellant's argument that Officer Kettman had no way of knowing

whether appellant rode his bicycle on the street or got off the bicycle to walk it across the

intersections since the officer did not continuously observe appellant's travel, we note that

an officer does not need proof beyond a reasonable doubt of a defendant's actual guilt of

the violation to justify the traffic stop. As this court has previously recognized, "[t]he

probable cause standard does not require an actual showing of a [traffic] violation, just a

probability of the violation." Hentenaar, 2020-Ohio-4503 at ¶ 12. See also Wilmington v.

Lubbers, 12th Dist. Clinton No. CA2013-06-013, 2014-Ohio-3083, ¶ 12 (noting the

establishment of probable cause requires only a probability or substantial chance of criminal

activity, not an actual showing of such activity). Officer Kettman's observations provided

probable cause to initiate the stop of appellant's bicycle for a traffic violation and the stop

did not violate appellant's constitutional rights under the Fourth Amendment to the United

States Constitution or Section 14, Article I of the Ohio Constitution. The drugs recovered

on appellant's person following this lawful traffic stop were not subject to suppression, as

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the discovery occurred following appellant's arrest on an outstanding arrest warrant and

appellant's admission to having drugs in his pants pocket.

{¶ 17} Furthermore, even if appellant's initial detention had violated his constitutional

right to be free from an unreasonable seizure, exclusion of the drugs found in his pants

pocket would be inappropriate under the attenuation doctrine. The attenuation doctrine

provides that evidence discovered as a result of unconstitutional police conduct is

admissible "when the connection between the unconstitutional police conduct and the

evidence is remote or has been interrupted by some intervening circumstance, so that 'the

interest protected by the constitutional guarantee that has been violated would not be

served by suppression of the evidence obtained.'" Utah v. Strieff, __ U.S. __, 136 S.Ct.

2056, 2061 (2016), quoting Hudson v. Michigan, 547 U.S. 586, 593, 126 S.Ct. 2159 (2006).

{¶ 18} In Strieff, an officer conducting surveillance of a suspected drug residence

stopped the defendant after observing him leave the residence. Id. at 2057. The officer

detained the defendant in a nearby parking lot and asked for his identification, which the

defendant provided. Id. The officer was notified by his dispatch that the defendant had an

outstanding arrest warrant for a traffic violation. Id. The officer arrested the defendant,

searched him, and found methamphetamine and drug paraphernalia. Id. The defendant

moved to suppress the evidence arguing it was derived from an unlawful investigatory stop.

Id. at 2058. The Utah Supreme Court ultimately ordered the evidence suppressed. Id.

{¶ 19} On appeal, the United States Supreme Court examined whether the discovery

of a valid arrest warrant was a sufficient intervening event to break the causal chain between

the unlawful stop and the discovery of drug-related evidence on the defendant's person. Id.

at 2061. The Court identified and applied the following three factors as necessary

considerations when applying the attenuation doctrine: (1) the "temporal proximity" between

the unconstitutional conduct and the discovery of the evidence, (2) the "presence of

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intervening circumstances," and (3) the "purpose and flagrancy of the official misconduct."

Id. at 2061-2602, citing Brown v. Illinois, 422 U.S. 590, 95 S.Ct. 2254 (1975).

{¶ 20} The Court first noted that the temporal proximity between the unlawful stop

and the search favored suppressing the evidence as the officer discovered drug contraband

on the defendant only minutes after the illegal stop. Id. at 2062. However, the second

factor – the presence of intervening circumstances – strongly favored the state as the

outstanding warrant for the defendant's arrest predated the officer's investigation and was

"a critical intervening circumstance that [was] wholly independent of the illegal stop." Id. at

2062-2063. Once the officer discovered the warrant, he had an obligation to arrest the

defendant. Id. at 2062. And once the officer arrested the defendant, "it was undisputedly

lawful to search [the defendant] as an incident of his arrest." Id. at 2063. As for the third

factor – the "purpose and flagrancy of the official misconduct" – the court found that this

factor also strongly favored the state as the officer's "errors in judgment hardly [rose] to a

purposeful or flagrant violation of [the defendant's] Fourth Amendment rights." Id. The

court noted that "there [was] no indication that this unlawful stop was part of any systemic

or recurrent police misconduct" but rather was "an isolated instance of negligence that

occurred in connection with a bona fide investigation of a suspected drug house." Id.

Considering all three factors, the court held that "the evidence discovered on [the

defendant's] person was admissible because the unlawful stop was sufficiently attenuated

by the pre-existing arrest warrant." Id.

{¶ 21} Applying the factors set forth in Strieff to the facts in the present case, we find

that the methamphetamine discovered in appellant's pants pocket is admissible under the

attenuation doctrine. Assuming the initial stop was unlawful, the only factor favoring

appellant is the temporal proximity between the unlawful stop and the search that resulted

in the discovery of the drugs. This factor, however, is outweighed by consideration of the

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second and third factors, which strongly favor admissibility of the evidence. Like in Strieff,

the presence of intervening circumstances, specifically the discovery of a preexisting

warrant for appellant's arrest, was a critical intervening circumstance wholly independent

from the illegal stop. Once the arrest warrant was discovered, Officer Kettman had an

obligation to arrest appellant and, once appellant was arrested, the officer was lawfully

permitted to conduct a search incident to the arrest. Finally, there was no indication that

Officer Kettman's stop of appellant was anything more than an error in judgment based on

a reasonable belief that appellant was in violation of the city's bicycle-light ordinance. This

isolated instance of negligence does not rise to the level of a purposeful or flagrant violation

of appellant's Fourth Amendment rights. Therefore, the methamphetamine found on

appellant's person is admissible pursuant to the attenuation doctrine as the unlawful stop

was sufficiently attenuated by the preexisting arrest warrant.

{¶ 22} Accordingly, for the reasons stated above, we find no error in the trial court's

denial of appellant's motion to suppress. Appellant's sole assignment of error is overruled.

{¶ 23} Judgment affirmed.

M. POWELL, P.J., and S. POWELL, J., concur.

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