State v. Trego , 2017 Ohio 6932 ( 2017 )

[Cite as State v. Trego, 2017-Ohio-6932.]
IN THE COURT OF APPEALS OF OHIO
THIRD APPELLATE DISTRICT
AUGLAIZE COUNTY
STATE OF OHIO,
CASE NO. 2-17-04
PLAINTIFF-APPELLEE,
v.
KENNETH R. TREGO, OPINION
DEFENDANT-APPELLANT.
Appeal from Auglaize County Municipal Court
Trial Court No. 16TRC4799
Judgment Affirmed
Date of Decision: July 24, 2017
APPEARANCES:
Andrew R. Bucher for Appellant
Randy A. Lamarr, Jr. for Appellee
Case No. 2-17-04
WILLAMOWSKI, J.
{¶1} Defendant-appellant Kenneth R. Trego (“Trego”) brings this appeal
from the judgment of the Auglaize County Municipal Court denying his motion to
suppress the evidence based upon an improper stop. For the reasons set forth below,
the judgment is affirmed.
{¶2} On July 20, 2016, Trego was driving his vehicle in Auglaize County
when a concerned citizen called 911 to report a driver who may have been impaired.
The citizen identified himself and told the dispatcher that the vehicle was traveling
at 20 mph in a 50 mph zone, was weaving within its lane, and was jerking back and
forth. The citizen also indicated that the driver was also braking frequently. The
citizen followed the vehicle while on the phone with the 911 dispatcher and
continued to report his location and observations, including a description of the
driver. The dispatcher notified Officer Chris McKinney (“McKinney”) of the New
Bremen Police Department who responded to the vehicle’s location. Once
McKinney was in view of the citizen, the citizen pointed out the vehicle that was
being followed. McKinney then initiated a traffic stop to learn the condition of the
driver.
{¶3} After stopping the vehicle, McKinney identified the driver of the
vehicle as Trego and determined that he matched the description of the driver given
by the citizen. McKinney detected a strong odor of an alcoholic beverage coming
from Trego and also observed that Trego’s eyes appeared red and glassy. Trego
-2-
Case No. 2-17-04
was subsequently arrested and cited with an OVI charge in violation of R.C.
4511.19(A)(1)(a). Doc. 1. On October 4, 2016, Trego filed a motion to suppress
any evidence from the stop. Doc. 28. Trego alleged that McKinney lacked
reasonable suspicion to stop Trego’s vehicle. A hearing was held on the motion on
November 17, 2016. Doc. 40. On November 21, 2016, the trial court denied the
motion to suppress. Id. On February 9, 2017, Trego changed his plea from one of
not guilty to no contest. Doc. 52. The trial court then found Trego guilty of the
charged offense and sentenced Trego to twenty days in jail with all jail time
suspended provided Trego complied with the terms of community control. Id. The
trial court also ordered Trego to pay a fine of $375.00 and suspended his license for
six months. Id. Trego filed his notice of appeal on February 27, 2017. Doc. 62.
On appeal Trego raises the following assignments of error.
First Assignment of Error
The trial court did not rely upon competent, credible evidence in
forming its findings of fact.
Second Assignment of Error
The trial court erred [when] it found the seizure of [Trego] did
not violate the Fourth Amendment of the United States
Constitution or Article I, §14 of the Ohio Constitution.
For the purpose of clarity, we will address the assignments of error out of order.
-3-
Case No. 2-17-04
Constitutionality of the Stop
{¶4} In the second assignment of error, Trego claims that the trial court erred
in denying his motion to suppress because the officer lacked a reasonable suspicion
of criminal activity to stop his vehicle.
While [Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889(1968)] and much of its progeny stand for the proposition that a
police officer generally needs a reasonable suspicion, based on
specific and articulable facts, that an occupant of a vehicle is or
has been engaged in criminal activity, nothing in the Fourth
Amendment requires that the “specific and articulable facts”
relate to suspected criminal activity. Were we to insist that every
investigative stop be founded on such suspicion, we would be
overlooking the police officer’s legitimate role as a public servant
designed to assist those in distress and to maintain and foster
public safety. That is, law enforcement officers may legitimately
approach persons and vehicles for purposes other than criminal
investigation.
State v. Norman, 136 Ohio App.3d 46, 53, 1999-Ohio-961, 735 N.E.2d 953 (3d
Dist.).
Because of the extensive regulation of motor vehicles and traffic,
and also because of the frequency with which a vehicle can
become disabled or involved in an accident on public highways,
the extent of police-citizen contact involving automobiles will be
substantially greater than police-citizen contact in a home or
office. Some such contacts will occur because the officer may
believe the operator has violated a criminal statute, but many
more will not be of that nature. Local police officers * * *
frequently investigate vehicle accidents in which there is no claim
of criminal liability and engage in what, for want of a better term,
may be described as community caretaking functions, totally
divorced from the detection, investigation or acquisition of
evidence relating to the violation of a criminal statute.”
-4-
Case No. 2-17-04
Cady v. Dombrowski, 413 U.S. 433, 441, 93 S.Ct. 2523, 37 L.Ed.2d 706. Under
appropriate circumstances, an officer may intrude on a person’s privacy to perform
a community caretaking function without reasonable, articulable suspicion of
criminal activity. Norman, supra at 54. The key question is whether the action of
the officer is reasonable given the circumstances. Id. “When approaching a vehicle
for safety reasons, the police officer must be able to point to reasonable, articulable
facts upon which to base [any] safety concerns.” Id.
{¶5} In 2012, the Ohio Supreme Court addressed the issue of community
caretaking functions and the Fourth Amendment in State v. Dunn, 131 Ohio St.3d
325, 2012-Ohio-1008, 964 N.E.2d 1037. The facts in Dunn were that dispatch
received a call indicating that a driver was armed and had indicated specific plans
to kill himself. Id. at ¶ 2. The caller identified the vehicle that was being driven,
the identity of the driver, and gave the police the location of the vehicle. Id. An
officer saw the vehicle and subsequently stopped the vehicle. Id. at ¶ 3-4. The
defendant was later indicted on one count of improper handling of a firearm in a
motor vehicle. Id. at 7. The defendant filed a motion to suppress claiming that the
stop of his vehicle violated his Fourth Amendment rights. Id. The trial court
overruled the motion to suppress finding it to be a reasonable. Id. at ¶ 8. The
appellate court reversed the conviction and the State appealed to the Supreme Court
of Ohio. Id. at ¶ 9. The Court held “that the [community caretaking] exception to
the Fourth Amendment warrant requirement allows police officers to stop a person
-5-
Case No. 2-17-04
to render aid if they reasonably believe that there is an immediate need for their
assistance to protect life or prevent serious injury. Id. at ¶ 22.
{¶6} Here, the parties stipulated to the authenticity of the recording of the
911 call. Dispatch received a call a little after 3:00 a.m. from a person who
identified himself by name, address, and phone number. He told the dispatch
operator that he was following and watching a red Honda which was being jerked
around within its lane of travel, was traveling excessively slow, and was frequently
braking. The caller told dispatch of the location as he continued to follow the
vehicle. He indicated that he believed the driver might have something wrong as he
appeared to be elderly because he had gray hair. Based upon this information,
dispatch contacted McKinney and informed him of a possible reckless driver. Tr.
4.
{¶7} McKinney testified that based upon the information relayed to him by
dispatch he had no concerns of criminal activity. Tr. 5. Instead, McKinney was
concerned that it may be an elderly person who was lost or had vehicle problems.
Tr. 5. These safety concerns were why McKinney decided to stop the vehicle. Tr.
5. When McKinney was near the caller and the red vehicle, the caller put his hand
out of the window and pointed out the car that was the subject of the call. Tr. 7.
This identification of the vehicle and the driver by the caller, the time of the night,
and the actions of the driver described by the caller were the facts upon which
McKinney relied in his decision to stop the vehicle. Tr. 8. These facts do provide
-6-
Case No. 2-17-04
reasonable, articulable facts upon which a reasonable person could conclude that
McKinney was exercising his caretaking function. This falls within an exception to
the Fourth Amendment. Thus, the second assignment of error is overruled.
Competent, Credible Evidence
{¶8} In his first assignment of error, Trego alleges that the trial court did not
rely upon competent, credible evidence in denying the motion to suppress. “An
appellate review of the trial court's decision on a motion to suppress involves a
mixed question of law and fact.” State v. Fittro, 3d Dist. Marion No. 9-14-19, 2015-
Ohio-1884, ¶ 11.
When considering a motion to suppress, the trial court assumes
the role of trier of fact and is therefore in the best position to
resolve factual questions and evaluate the credibility of witnesses.
State v. Mills (1992), 62 Ohio St.3d 357, 366, 582 N.E.2d 972.
Consequently, an appellate court must accept the trial court's
findings of fact if they are supported by competent, credible
evidence. State v. Fanning (1982), 1 Ohio St.3d 19, 1 OBR 57, 437
N.E.2d 583. Accepting these facts as true, the appellate court must
then independently determine, without deference to the
conclusion of the trial court, whether the facts satisfy the
applicable legal standard. State v. McNamara (1997), 124 Ohio
App.3d 706, 707 N.E.2d 539.
State v. Burnside, 100 Ohio St.3d 152, 2003-Ohio-5372, 797 N.E.2d 71, ¶ 8.
{¶9} Trego in this case stipulated to the 911 call being admitted. Tr. 2.
Although the caller was present at the suppression hearing, the parties agreed that
they did not need him to testify and that he was released from his subpoena. Tr. 2.
The remainder of the evidence was the testimony of McKinney. Trego cross-
-7-
Case No. 2-17-04
examined McKinney. Trego presented no evidence in support of his motion. The
trial court found the recording and the testimony of McKinney to be credible and
persuasive. On appeal, Trego presents no argument as to why the evidence was not
credible other than the legitimacy of the stop, which was addressed above. Given
that there was evidence presented and no argument was presented as to why it was
not credible, this court does not find that the trial court erred in relying on it. The
first assignment of error is overruled.
{¶10} Having found no error in the particulars assigned and argued, the
judgment of the Auglaize County Municipal court is affirmed.
Judgment Affirmed
PRESTON, P.J. and SHAW, J., concur.
/hls
-8-