State v. Paolucci , 110 N.E.3d 548 ( 2018 )

[Cite as State v. Paolucci, 2018-Ohio-1332.]
IN THE COURT OF APPEALS
ELEVENTH APPELLATE DISTRICT
LAKE COUNTY, OHIO
STATE OF OHIO, : OPINION
Plaintiff-Appellee, :
CASE NO. 2017-L-059
- vs - :
JOSEPH A. PAOLUCCI, :
Defendant-Appellant. :
Criminal Appeal from the Lake County Court of Common Pleas, Case No. 2015 CR
000893.
Judgment: Affirmed.
Charles E. Coulson, Lake County Prosecutor, and Kelsey R. Lutz, Assistant
Prosecutor, Lake County Administration Building, 105 Main Street, P.O. Box 490,
Painesville, OH 44077 (For Plaintiff-Appellee).
Charles R. Grieshammer, Lake County Public Defender, Vanessa R. Clapp, and Aaron
T. Baker, Assistant Public Defenders, 125 East Erie Street, Painesville, OH 44077 (For
Defendant-Appellant).
DIANE V. GRENDELL, J.
{¶1} Defendant-appellant, Joseph A. Paolucci, appeals the denial of his Motion
to Suppress by the Lake County Court of Common Pleas. The issue before this court is
whether the R.C. 2935.03(D) requirements for effecting an extra-jurisdictional arrest are
satisfied where a municipal police officer begins following a suspect after observing
marked lanes violations but does not stop the suspect until after he has left the territorial
jurisdiction of the municipality. For the following reasons, we affirm the decision of the
court below.
{¶2} On February 19, 2016, the Lake County Grand Jury indicted Joseph A.
Paolucci for Operating a Vehicle under the Influence of Alcohol, a Drug of Abuse, or a
Combination of Them (Count 1), a felony of the third degree in violation of R.C.
4511.19(A)(1)(a) with the specification that he “has been previously convicted of or
pleaded guilty to five or more violations of division (A) or (B) of R.C. §4511.19 * * *
within twenty years of committing this offense” pursuant to R.C. 2941.1413, and Driving
in Marked Lanes (Count 2), a minor misdemeanor in violation of R.C. 4511.33(A)(1).
{¶3} On March 7, 2016, Paolucci entered a plea of “not guilty” to all charges.
{¶4} On April 14, 2016, Paolucci filed a Motion to Suppress, to which the State
responded on April 25, 2016. Paolucci filed a Supplemental Motion to Suppress on May
25, 2016.
{¶5} On May 27, 2016, a hearing was held on the Motion to Suppress.
{¶6} On July 15, 2016, the trial court entered an Order Denying Motion to
Suppress Evidence. The court made the following relevant findings:
On October 22, 2015, at about 12:26 a.m., Officer [Donald]
Swindell [of the Mentor Police Department] * * * saw the defendant
operate a motor vehicle, a silver 2011 Chevrolet Camaro,
northbound on S.R. 306 and commit a marked lane traffic violation
by at least one tire drifting completely over and left of the double-
yellow lane divider just north of the eastbound exit/entrance ramps
of S.R. 2.
The officer * * * followed the defendant as he entered the
westbound ramp from S.R. 306 to S.R. 2.
The officer was behind the defendant when he saw the defendant
commit a second lane violation, by at least one tire going
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completely left of the left-hand yellow longitudinal lane marking on
the ramp.
While traveling westbound on S.R. 2 in the right-hand lane, just
east of the Mentor-Willoughby corporation line, but in the City of
Mentor, according to the officer, the defendant crossed the left-
hand broken lane line into the center lane with at least one tire,
constituting a third marked lanes violation.
The officer activated his emergency lights at the top of the exit
ramp. The defendant turned right onto Lost Nation Road and
immediately turned left on Reeves Road and stopped shortly after
turning onto Reeves Road.
The officer had reasonable suspicion from the defendant’s erratic
driving to believe that the defendant was either committing serial
marked lane violations or that the defendant was an impaired
driver, or both. The officer’s police training indicated that further
investigation was necessary to buttress his reasonable suspicions
and determine his method of approach. The officer followed the
defendant for about 45 seconds outside the City of Mentor to the
next exit on S.R. 2. The facts support a finding that the pursuit of
the defendant by the officer began within his jurisdiction and without
unreasonable delay after the marked lane offenses were
committed.
The officer complied with R.C. 2935.03(D) in pursuing, arresting,
and detaining the defendant outside the jurisdiction of the Mentor
Police Department, because the officer’s pursuit took place without
unreasonable delay after the offense was committed, the pursuit
was initiated within the City of Mentor, and the offense involved was
an offense for which points are chargeable pursuant to R.C.
4510.036.
{¶7} On January 27, 2017, Paolucci entered a written plea of “no contest” to
the first count of the Indictment, Operating a Vehicle under the Influence of Alcohol.
{¶8} On March 9, 2017, the trial court sentenced Paolucci to serve a definite
term of incarceration of twenty-four months for Operating a Vehicle under the Influence
of Alcohol and an additional one-year term for the specification and imposed a
mandatory fine of $1,350. Paolucci’s driver’s license was permanently revoked, his
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vehicle was declared forfeit, and he was ordered to undergo mandatory drug and
alcohol treatment.
{¶9} On April 12, 2017, Paolucci filed a Notice of Appeal. On appeal, Paolucci
raises the following assignment of error:
{¶10} “[1.] The trial court erred by failing to grant a motion to suppress when
Mentor Police violated the guarantee against unreasonable searches and seizures
established by Article I, Section 14 of the Ohio Constitution, by initiating a traffic stop for
a minor misdemeanor outside of police jurisdiction and without statutory authority to do
so.”
{¶11} “Appellate review of a motion to suppress presents a mixed question of
law and fact.” State v. Burnside, 100 Ohio St.3d 152, 2003-Ohio-5372, 797 N.E.2d 71,
¶ 8. At a suppression hearing, “the trial court is best able to decide facts and evaluate
the credibility of witnesses.” State v. Mayl, 106 Ohio St.3d 207, 2005-Ohio-4629, 833
N.E.2d 1216, ¶ 41. “Its findings of fact are to be accepted if they are supported by
competent, credible evidence, and we are to independently determine whether they
satisfy the applicable legal standard.” Id. The reviewing court must then “independently
determine as a matter of law, without deference to the conclusion of the trial court,
whether the facts satisfy the applicable legal standard.” (Citation omitted.) State v.
Leak, 145 Ohio St.3d 165, 2016-Ohio-154, 47 N.E.3d 821, ¶ 12; State v. Orosz, 11th
Dist. Lake No. 2016-L-057, 2017-Ohio-707, ¶ 22 (“[o]nce the appellate court accepts the
trial court’s factual determinations, the appellate court conducts a de novo review of the
trial court’s application of the law to these facts”) (citation omitted).
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{¶12} Article I, Section 14 of the Ohio Constitution provides as follows: “The right
of the people to be secure in their persons, houses, papers, and possessions, against
unreasonable searches and seizures shall not be violated * * *.”
{¶13} Paolucci contends that Officer Swindell lacked statutory authority to effect
an extra-jurisdictional stop and, therefore, “all evidence which followed the stop should
be suppressed as fruit of the poisonous tree.” Appellant’s brief at 6.
{¶14} Paolucci relies upon the Ohio Supreme Court’s decision in State v. Brown,
143 Ohio St.3d 444, 2015-Ohio-2438, 39 N.E.3d 496, for the proposition that: “A traffic
stop for a minor misdemeanor made outside a police officer’s statutory jurisdiction or
authority violates the guarantee against unreasonable searches and seizures
established by Article I, Section 14 of the Ohio Constitution.” Id. at ¶ 26.1
{¶15} The authority of a municipal police officer to effect an extra-jurisdictional
arrest is defined as follows:
If a * * * municipal police officer * * * is authorized * * * to arrest and
detain, within the limits of the political subdivision, * * * a person
until a warrant can be obtained, the peace officer, outside the limits
of that territory, may pursue, arrest, and detain that person until a
warrant can be obtained if all of the following apply:
(1) The pursuit takes place without unreasonable delay after the
offense is committed;
(2) The pursuit is initiated within the limits of the political subdivision
* * *;
1. We note the holding of this court in State v. Annis, 11th Dist. Portage No. 2001-P-0151, 2002-Ohio-
5866, ¶ 20, that “simply because there is a statutory limit placed on township police officers’ jurisdiction to
arrest, does not mean that a violation of the statute is an infringement of a Fourth Amendment
constitutional right.” In State v. Jones, 121 Ohio St.3d 103, 2009-Ohio-316, 902 N.E.2d 464, syllabus, the
Ohio Supreme Court held: “A law-enforcement officer who personally observes a traffic violation while
outside the officer’s statutory territorial jurisdiction has probable cause to make a traffic stop; the stop is
not unreasonable under the Fourth Amendment to the United States Constitution.” In Brown, however,
the court did not find Jones controlling inasmuch as it concerned the Fourth Amendment while “‘[t]he Ohio
Constitution is a document of independent force.” (Citation omitted.) Brown, 2015-Ohio-2438, at ¶ 24.
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(3) The offense involved is a felony, a misdemeanor of the first
degree or a substantially equivalent municipal ordinance, a
misdemeanor of the second degree or a substantially equivalent
municipal ordinance, or any offense for which points are chargeable
pursuant to section 4510.036 of the Revised Code.
R.C. 2935.03(D).
{¶16} With respect to the first requirement, Paolucci argues that, “[g]iven that the
Mentor Police officer deliberately waited and observed Mr. Paolucci’s vehicle until he
was outside of Mentor, the delay in pursuing him was unreasonable.” Appellant’s brief
at 5.
{¶17} We find nothing unreasonable regarding Officer Swindell’s pursuit of
Paolucci. Properly speaking, the pursuit began immediately after Swindell observed the
first marked lanes violation on S.R. 306 when he began following Paolucci. That
Swindell did not immediately effect a stop was reasonable. As he explained at the
suppression hearing:
I was following the vehicle just to observe his driving. His lane
violations * * * weren’t endangering other people; however, they
were violations nonetheless. So I was following the vehicle to see
how his driving was continuing.
Also, Swindell effected the stop less than a minute after leaving the territorial jurisdiction
of Mentor. The delay in effecting the actual stop in circumstances such as these has
been found reasonable. State v. Black, 6th Dist. Fulton No. F-03-010, 2004-Ohio-218, ¶
23.
{¶18} Paolucci next contends that “[m]ere following is not pursuit,” and that the
actual pursuit began “only at that time that [Officer Swindell] initiated the traffic stop in
an attempt to catch Mr. Paolucci.” Appellant’s brief at 6.
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{¶19} Although undefined, the term “pursuit” as used in the statute is
consistently given a broad interpretation such as would encompass Officer Swindell’s
following Paolucci upon observation of the marked lanes violation.
A review of recent cases reveals that the pursuit necessary to fulfill
R.C. 2935.03(D)(1) and (2) need not be an uninterrupted chase, but
may be a part of a police investigation of an earlier crime. Hence,
many cases have held that an officer begins pursuit within her own
jurisdiction when she radios descriptive information to fellow
officers who eventually stop and arrest a suspect in another
jurisdiction. In Terrace Park v. McBride (Dec. 11, 1985), Hamilton
App. No. C-850061, unreported, a police officer saw two cars
driving erratically, one driven by the defendant. The officer stopped
one of the cars and radioed to another officer to detain defendant’s
car, which had already left the officers’ jurisdiction. Defendant was
detained for fifteen minutes until the first officer arrived to arrest
him. The court found the officer’s action to be a “pursuit” under
R.C. 2935.03. The Eighth District Court of Appeals held in State v.
Majors (Mar. 23, 1989), Cuyahoga App. No. 56410, unreported,
that an arrest was authorized by R.C. 2935.03 where a police
detective investigating an earlier breaking and entering came upon
a car driven by the defendant which matched a prior radio
description, stopped the car and held it while witnesses were
summoned for purposes of identifying the suspect.
In a similar drunk driving case, the court held in State v. Beckwith
(1987), 38 Ohio App.3d 30, at 32, that there was a pursuit when
officers followed a suspect observed driving erratically from their
jurisdiction into a neighboring jurisdiction, where the suspect was
subsequently arrested, because the officers followed the suspect
for the purpose of stopping him. See, also, Ohio v. Winters (Feb. 7,
1990), Hamilton App. No. C-880773, unreported; Garfield Heights
v. Raymond Schentur (Dec. 6, 1984), Cuyahoga App. No. 12684,
unreported.
State v. Jackson, 10th Dist. Franklin No. 90AP-457, 1990 WL 174069, *2-3 (Nov. 6,
1990); State v. Williamson, 12th Dist. Butler No. CA2003-02-047, 2004-Ohio-2209, ¶ 27
(the officers’ “actions amounted to a ‘pursuit’ within the meaning of R.C. 2935.03(D)”
where they “obtained statements and a physical description from the victims, and then
immediately drove to where appellant likely would be”).
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{¶20} Lastly, Paolucci argues that the offense involved which, according to
Paolucci, was only the marked lanes violation, does not constitute a felony, first degree
misdemeanor, or an offense for which points are chargeable under R.C. 4510.036.
Appellant’s brief at 6.
Points are chargeable according to the following formula:
(10) A violation of division (B) of section 4511.19 of the Revised
Code or any ordinance substantially equivalent to that division
prohibiting the operation of a vehicle with a prohibited concentration
of alcohol in the whole blood, blood serum or plasma, breath, or
urine .......... 4 points
***
(15) With the exception of violations under section 4510.12 of the
Revised Code where no points shall be assessed, all other moving
violations reported under this section .......... 2 points
R.C. 4510.036(C).
{¶21} Excluding the argument that Officer Swindell detained Paolucci with
probable cause for a violation of R.C. 4511.19, a marked lanes violation constitutes a
“moving violation” for which two points are assessed. R.C. 4510.01(E) (“‘[m]oving
violation’ means any violation of any statute or ordinance that regulates the operation of
vehicles * * * on the highways or streets”).2
{¶22} Accordingly, Officer Swindell’s extra-jurisdictional arrest and detention of
Paolucci was lawful pursuant to R.C. 2935.03(D).
{¶23} The sole assignment of error is without merit.
2. At oral argument, counsel for Paolucci maintained that (C)(15) did not encompass marked lanes
violations on the grounds that (C)(15) only applied to “moving violations reported under this section” and a
marked lanes violation is not otherwise “listed” under division (C). Counsel’s interpretation is nonsensical
since, if marked lanes violation was listed in divisions (C)(1) through (14), division (C)(15) would be
redundant. Rather, “reported under this section” refers to the bureau of motor vehicles’ duty to “maintain
records of convictions * * * for any violation of a state law or a municipal ordinance regulating the
operation of vehicles” as provided for by R.C. 4510.036(A).
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{¶24} For the foregoing reasons, the denial of Paolucci’s Motion to Suppress by
the Lake County Court of Common Pleas is affirmed. Costs to be taxed against
appellant.
CYNTHIA WESTCOTT RICE, J., concurs,
THOMAS R. WRIGHT, P.J., concurs in judgment only.
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