 [Cite as State v. Byrnes, 2014-Ohio-1274.]




                            IN THE COURT OF APPEALS OF OHIO
                               SECOND APPELLATE DISTRICT
                                  MONTGOMERY COUNTY

 STATE OF OHIO

         Plaintiff-Appellant

 v.

 SPENCER BYRNES

         Defendant-Appellee



 Appellate Case No.       25860

 Trial Court Case No. 2013-TRC-5770


 (Criminal Appeal from
 (Municipal Court)
                                              ...........

                                              OPINION

                                Rendered on the 18th day of March, 2014.

                                              ...........

AMY B. MUSTO, Atty. Reg. No. 0071514, Assistant City of Dayton Prosecutor, 335 West Third
Street, Room 372, Dayton, Ohio 45402
        Attorney for Plaintiff-Appellant

STEPHANIE ALLEN, Atty. Reg. No. 0080702, 3640 Colonel Glenn Highway, B015 Student Union,
Dayton, Ohio 45435
      Attorney for Defendant-Appellee

                                              .............

WELBAUM, J.
                                                                                          2


       {¶ 1}    Plaintiff-appellant, the State of Ohio, appeals from the decision of the Dayton

Municipal Court sustaining a motion to suppress evidence filed by defendant-appellee, Spencer

Byrnes. For the reasons outlined below, the judgment of the trial court will be reversed and

remanded for further proceedings consistent with this opinion.



                               Facts and Course of Proceedings

       {¶ 2}    On May 1, 2013, Sergeant Christopher Malson of the City of Dayton Police

Department was traveling eastbound in his police cruiser on Third Street in Dayton, Ohio, when

he observed a silver vehicle traveling in the opposition direction without a front license plate.

While passing the vehicle, Malson also observed that the driver, later identified as Byrnes, was

not wearing his safety belt. Upon noticing these violations, Malson turned his cruiser around to

follow Byrnes’s vehicle for purposes of issuing a citation. As Malson turned around, Byrnes

parked his vehicle onto a side street and began walking down the street with the passenger of his

vehicle. When Malson made contact with Byrnes and the passenger, he noticed that both of

them smelled of alcohol and had slurred speech. Thereafter, Malson conducted a field sobriety

test and cited Byrnes for operating a vehicle while under the influence of alcohol in violation of

R.C. 4511.19(A)(1). Byrnes was also cited for not having a front license plate in violation of

R.C. 4503.21(A), and failing to wear a safety belt in violation of R.C. 4513.263(B)(1).

       {¶ 3}    On May 3, 2013, Byrnes was arraigned and pled not guilty to all of the charges

against him. Following a pretrial conference, Byrnes filed a motion to suppress all evidence that

was obtained after Malson initially stopped him.       The written motion contained a heading

summarizing Byrnes’s argument, which stated that: “The arresting officer lacked reasonable
                                                                                                3


suspicion to make the initial stop and once detained, lacked cause to arrest the Defendant.”

However, the motion only specifically addressed the issue of whether there was reasonable

articulable suspicion and probable cause for Malson to initially stop Byrnes. Byrnes did not

include any argument regarding his subsequent detention for sobriety testing.

       {¶ 4}    A hearing on the motion to suppress was held on July 23, 2013.                  At the

beginning of the hearing, the State indicated that it believed the only issue raised in Byrnes’s

motion to suppress was whether Malson had probable cause to initially stop Byrnes.                    In

response, the trial court said: “I’ve read the * * * motion to suppress and the only issue raised is

whether there was a reasonable articulable suspicion or probable cause to stop.” Trans. (July 23,

2013), p. 3. The defense did not object to the court’s statement, and restricted its questioning to

that single issue during the hearing.

       {¶ 5}    After the motion to suppress hearing, the trial court issued a decision granting

Byrnes’s motion to suppress. In so holding, the trial court determined that Malson had probable

cause to stop Byrnes due to his witnessing the license plate and safety belt violations, but

concluded that Malson’s continued detention of Byrnes was unlawful, because he did not have a

reasonable articulable suspicion that Byrnes was impaired or under the influence. Following the

trial court’s decision, the State filed a motion to reconsider, which the trial court denied.

       {¶ 6}    The State now appeals from the trial court’s decision granting Byrnes’s motion to

suppress, raising one assignment of error.



                                        Assignment of Error

       {¶ 7}    The State’s sole assignment of error is as follows:
                                                                                           4


       THE TRIAL COURT ERRED WHEN IT GRANTED THE APPELLEE’S

       MOTION       TO   SUPPRESS.          THE    TRIAL      COURT      INCORRECTLY

       ADDRESSED THE ISSUE OF WHETHER THE OFFICERS HAD A

       REASONABLE ARTICULABLE SUSPICION TO DETAIN THE [APPELLEE]

       FOLLOWING THE STOP FOR THE PURPOSE OF INVESTIGATING THE

       APPELLEE’S IMPAIRMENT.             THE ISSUE OF POST STOP DETENTION

       WAS NOT RAISED AS AN ISSUE IN THE APPELLEE’S WRITTEN

       MOTION AND WAS NOT RAISED PRIOR TO THE START OF THE

       MOTION HEARING. THE APPELLANT THEREFORE DID NOT ADDRESS

       THIS ISSUE AS IT WAS NOT BEFORE THE COURT AND/OR LACKED

       NOTICE THAT IT WAS AN ISSUE BEFORE THE COURT.

       {¶ 8}   Under its sole assignment of error, the State argues that the trial court erroneously

ruled on the issue of whether Sergeant Malson had a reasonable articulable suspicion to detain

Byrnes beyond the initial stop, because that issue was not raised in Byrnes’s motion to suppress

nor argued by Byrnes during the motion to suppress hearing. In addition, the State argues that

the trial court confirmed at the motion to suppress hearing that the only issue presented in

Byrnes’s motion concerned whether there was probable cause for the initial stop. The State

maintains that it did not have notice that the court would also be addressing probable cause for

the post-stop detention, and contends that it was prejudiced by the lack of notice, because it

would have otherwise presented evidence on this issue at the hearing.

       {¶ 9}   This court addressed a similar scenario in Dayton v. Dabney, 99 Ohio App.3d 32,

649 N.E.2d 1271 (2d Dist.1994). In Dabney, the defendant’s motion to suppress contained only
                                                                                               5


two issues for the trial court to review, and the hearing on the motion only proceeded on those

two issues. Id. at 34. After the hearing, however, the defendant raised a third suppression issue

in a supplemental memorandum. Id. at 35. In response, the City of Dayton filed an opposing

memorandum pointing out the fact that the third issue had not been raised during the motion to

suppress hearing and that the City had not been put on notice of that issue. Id. The City further

requested that, if the third issue needed to be clarified, the court reopen the motion to suppress

hearing so that the City could present testimony and evidence regarding the third issue. Id.

Instead, the trial court ruled on all three issues, and granted the motion to suppress based on the

third issue. Id. at 36.

       {¶ 10} Thereafter, the City appealed the trial court’s decision arguing that the court

committed prejudicial error in suppressing evidence on grounds that were: “(a) not raised in

Dabney’s motion to suppress, (b) not raised in the hearing on the motion to suppress, (c) not

supported by any evidence before the court, (d) only raised sua sponte by the trial court after both

parties had rested their cases, and (e) susceptible of refutation by the city as a factual issue but the

city was given no opportunity to provide any such evidentiary refutation.” Id. at 33. In light of

the City's argument, this court noted that:

       It is settled law in Ohio that a motion to suppress evidence must make clear the

       grounds upon which the motion is based in order that the prosecutor may prepare

       his case and the court may know the grounds of the challenge in order to rule on

       evidentiary issues at the hearing and properly dispose of the merits. Xenia v.

       Wallace (1988), 37 Ohio St.3d 216, 524 N.E.2d 889. “Failure on the part of the

       defendant to adequately raise the basis of his challenge constitutes a waiver of that
                                                                                            6


       issue on appeal.”      Id. at 218, 524 N.E.2d at 892.        Furthermore, Crim.R. 47

       requires that a motion to the court shall be in writing and must “state with

       particularity the grounds upon which it is made * * *.” The Supreme Court has

       stated that “this provision, in the context of the ruling case law and when applied to

       a motion to suppress evidence obtained by search and seizure, requires that the

       prosecution be given notice of the specific legal and factual grounds upon which

       the validity of the search and seizure is challenged.” (Emphasis added.) Id. at

       219, 524 N.E.2d at 892. This court has adhered to the above ruling in Xenia.

       State v. Krasne (Apr. 23, 1993), Montgomery App. No. 13421, unreported, 1993

       WL 125427.

Dabney at 37.

       {¶ 11} Based on the foregoing, we reversed and remanded the trial court’s decision in

Dabney, explaining “that the fundamental error of the trial court was interjecting a new issue

which was not supported by any evidence whatsoever, and basing its decision to suppress the

evidence on this new issue, without giving the city the opportunity to present evidence on the

issue.” Dabney, 99 Ohio App.3d at 39, 649 N.E.2d 1271. We further concluded that “the

action of the trial court was prejudicial error to the city.” Id.

       {¶ 12} Additionally, in State v. Blackburn, 2d Dist. Clark No. 3084, 1994 WL 95224

(Mar. 23, 1994), this court concluded that a trial court is free to expand the scope of a

suppression hearing beyond the issues specified in the motion to suppress “so long as the matters

within the expanded scope were material to the suppression sought, and so long as the State had

a reasonable opportunity to prepare itself for the hearing.” (Emphasis added.) Id. at 4.
                                                                                             7


       {¶ 13} In the case before us, Byrnes’s motion to suppress did not present any argument

regarding the post-stop detention, but merely addressed the issue of whether there was reasonable

articulable suspicion and probable cause for Sergeant Malson to stop Byrnes. Moreover, the trial

court confirmed at the motion to suppress hearing that “the only issue raised is whether there was

a reasonable articulable suspicion or probable cause to stop.” Trans. (July 23, 2013), p. 3. If

the trial court’s understanding was incorrect, the defense had the obligation to correct the court so

that the court and the prosecution would be put on notice of the issues to be decided. See State

v. Schindler, 70 Ohio St.3d 54, 58, 636 N.E.2d 319 (1994) (“the defendant must state the

motion’s legal and factual basis with sufficient particularity to place the prosecutor and court on

notice of the issues to be decided.”) Here, however, the defense did not correct the court, but

instead, proceeded with the hearing as if the trial court had properly interpreted the motion as

involving only one issue. Therefore, the State was clearly not provided notice of the second

issue regarding Byrnes’s continued detainment.

       {¶ 14} Also, the trial court in this case interjected a new issue that was not a subject of

the motion to suppress hearing and based its judgment on the new issue. If the trial court had

later changed its mind about the scope of the hearing, it should have informed the parties so that

the second issue could have been fairly litigated. Here, the State had no notice that the trial court

would be considering the post-stop detainment, and thus did not have a reasonable opportunity to

prepare itself for addressing that issue at the hearing.         Therefore, the State was unfairly

prejudiced by the trial court’s decision to address the latent issue.

       {¶ 15} For the foregoing reasons, Byrnes’s motion to suppress was improperly granted

by the trial court. As a result, the motion to suppress shall be reopened to allow the State to
                                                                                       8


address the issue of whether there was probable cause to continue to detain Byrnes for sobriety

testing. The State’s sole assignment of error is, therefore, sustained.



                                            Conclusion

       {¶ 16} Having sustained the State’s sole assignment of error, the judgment of the trial

court is reversed and remanded for further proceedings consistent with this opinion.



                                          .............


FAIN and DONOVAN, JJ., concur.




Copies mailed to:

Amy B. Musto
Stephanie Allen
Hon. Deirdre E. Logan
