[Cite as State v. Bergk, 2017-Ohio-8210.]


                                        COURT OF APPEALS
                                     FAIRFIELD COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT


STATE OF OHIO                                :       JUDGES:
                                             :       Hon. William B. Hoffman, P.J.
        Plaintiff - Appellee                 :       Hon. Craig R. Baldwin, J.
                                             :       Hon. Earle E. Wise, J.
-vs-                                         :
                                             :
DOROTHY BERGK                                :       Case No. 16-CA-45
                                             :
        Defendant - Appellant                :       OPINION



CHARACTER OF PROCEEDING:                             Appeal from the Fairfield County
                                                     Court of Common Pleas, Case No.
                                                     16-CR-250




JUDGMENT:                                            Reversed and Remanded




DATE OF JUDGMENT:                                    October 13, 2017




APPEARANCES:

For Plaintiff-Appellee                               For Defendant-Appellant

R. KYLE WITT                                         THOMAS R. ELWING
Fairfield County Prosecuting Attorney                60 West Columbus Street
                                                     Pickerington, Ohio 43147
By: JOSHUA S. HORACEK
Assistant Prosecuting Attorney
239 West Main Street, Suite 101
Lancaster, Ohio 43130
Fairfield County, Case No. 16-CA-45                                                 2

Baldwin, J.

       {¶1}   Defendant-appellant Dorothy Bergk appeals from the denial by the Fairfield

County Court of Common Pleas of her Motion to Suppress. Plaintiff-appellee is the State

of Ohio.

                              STATEMENT OF THE FACTS AND CASE

       {¶2}   On July 1, 2016, the Fairfield County Grand Jury indicted appellant on one

count of possession of heroin in violation of R.C. 2925.11(A) and 2925.11(C)(6)(a), a

felony of the fifth degree.

       {¶3}   Appellant, on September 13, 2016, filed a Motion to Suppress. Appellant, in

her motion, sought to suppress approximately 0.15 grams of heroin on the grounds that

the heroin had been seized by the police during an unreasonable investigative detention

and warrantless vehicle search. A hearing on the motion was held on October 14, 2016.

       {¶4}   At the hearing, Officer Charles Sims of the Lancaster Police Department

testified that on May 2, 2016, he was working patrol in uniform in a marked cruiser when

he went to a drive-thru to get a soda for himself. When he was going through the drive-

thru, an employee of the drive-thru told him that just prior to his arrival, one vehicle had

rear-ended another vehicle. Officer Sims testified that the employee told him that the

woman who was driving the rear vehicle seemed “just not right” and appeared to be off.

Transcript at 31.   Because neither vehicle was damaged, neither of the drivers wanted

anything done.

       {¶5}   As Officer Sims was pulling away from the drive-thru, the same employee

stopped him and told him that the vehicle that had rear-ended the other vehicle was

parked on the side of the building. He testified that the employee asked him to investigate
Fairfield County, Case No. 16-CA-45                                                  3


the vehicle and that she appeared to be concerned for the well-being of the occupants.

Officer Sims testified that he next pulled in behind the vehicle, which was occupied by a

man and a woman, and began to run the license plate. According to Officer Sims, he

pulled in behind the vehicle for purposes of officer safety. He testified that he was

concerned that the driver could be under the influence of alcohol or drugs or could be

having a medical issue.

       {¶6}   Officer Sims then made contact with the driver of the vehicle, who was

appellant. He asked appellant for identification and she produced the same. Officer Sims

testified that he had recognized both appellant and her passenger from a prior drug

trafficking investigation in 2015. Both appellant and her passenger, in 2015, had been

indicted for trafficking in cocaine, but the charges were later dismissed due to the death

of the confidential informant. Appellant told the Officer that she had not been feeling well.

He testified that “it seemed to me that she wasn’t under the influence, necessarily, right

away, and that she didn’t need an emergency squad right then.” Transcript at 58. He

further testified that appellant did not want to make eye contact with him and that her

passenger was “extremely nervous”, his hands were shaking and he was bouncing his

knee up and down and that he was on the phone. Transcript at 59. The Officer testified

that these were good indicators that the two had something to hide.

       {¶7}   Shortly after providing appellant’s driver’s license information to dispatch,

Officer Sims called for a canine unit to be dispatched. The following testimony was

adduced when he was asked why he called for the unit:

       {¶8}   “Harold [appellant’s passenger] was just,-- his nervous behavior was really,

really tipping off ques (sic) to me that something was going on. So his nervous behavior,
Fairfield County, Case No. 16-CA-45                                                  4


Dorothy [appellant] not wanting to make eye contact with me, their drug history in the

past, there was just too many ques (sic) and indicators there that were indicating to me

that something was going on, Why were they even pulled over on the side of the building?

Because she was checking a lighter, is what she said, and she was trying to change the

–why wouldn’t Harold just do that? There was just a lot of ques (sic) and indicators that

something was going on. Something was not right with this vehicle and these people in

this vehicle at that time.”

       {¶9}    Transcript at 64-65.

       {¶10} Officer Sims agreed that when he called for the canine unit, he had not

received confirmation of any suspensions or warrants for appellant and was still waiting

on such information from dispatch. At nine minutes and 49 seconds into the stop,

dispatch informed Officer Sims that appellant was “valid, no restrictions.” Transcript at 51.

At nine minutes and 59 seconds into the stop, Officer Sims advised appellant and her

passenger that the canine unit would be walking around the vehicle. There was evidence

that at approximately ten minutes and 20 seconds into the stop, the canine conducted a

sniff around the vehicle and, within seconds, alerted to the presence of narcotics. Officer

Sims testified that narcotics were found in appellant’s purse.

       {¶11} On cross-examination, Officer Sims agreed that he was quickly able to

make the determination that appellant was not under the influence of alcohol or drugs.

He testified that she did not have an odor of alcohol on or about her person or coming

from the vehicle, that her eyes were not bloodshot or watery, and that she was not

slumped over. He agreed that fairly soon into the stop, he made the assessment that

appellant did not have any medical issues and that he made such assessment before
Fairfield County, Case No. 16-CA-45                                                 5


calling for the canine unit. Officer Sims further testified that he was aware that the 2015

indictments against appellant and her passenger for trafficking in cocaine had been

dismissed. He agreed that he allowed appellant and her passenger to drive away from

the scene.

       {¶12} On cross-examination, Officer Sims further testified that by the time that the

canine unit started walking around the vehicle, he had received information from dispatch

that appellant was valid and had no restrictions, that he was not investigating any type of

DUI stop, and that he was not investigating or detaining appellant for any type of

community caretaker function as a police officer. He agreed that he did not cite appellant

or her passenger for any offense and that he was not investigating the previous minor

automobile accident.

       {¶13} At the conclusion of the hearing, the trial court denied appellant’s Motion to

Suppress. A Judgment Entry memorializing the trial court’s decision was filed on October

28, 2016.

       {¶14} Thereafter, on November 7, 2016, appellant withdrew her former not guilty

plea and entered a plea of no contest to possession of heroin. The trial court found

appellant guilty and, pursuant to a Judgment Entry filed on November 14, 2016, placed

her on three years of community control. Appellant was also ordered to pay a fine in the

amount of $500.00 and her driver’s license was suspended for a period of 180 days.

       {¶15} Appellant now raises the following assignments of error on appeal:

       {¶16} I. THE TRIAL COURT ERRED IN OVERRULING APPELLANT’S MOTION

TO SUPPRESS BECAUSE THE INITIAL INVESTIGATIVE DETENTION BY OFFICER

SIMS WAS UNREASONABLE UNDER THE FOURTH AMENDMENT TO THE UNITED
Fairfield County, Case No. 16-CA-45                                                   6


STATES    CONSTITUTION         AND     SECTION         14,   ARTICLE   I   OF   THE   OHIO

CONSTITUTION.

      {¶17} II. THE TRIAL COURT ERRED IN OVERRULING APPELLANT’S MOTION

TO SUPPRESS BECAUSE THE PROLONGED INVESTIGATIVE DETENTION BY

OFFICER SIMS TO SUMMON A DRUG- SNIFFING CANINE AND CONDUCT A

WARRANTLESS SEARCH OF APPELLANT’S AUTOMOBILE WAS UNREASONABLE

UNDER THE FOURTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND

SECTION 14, ARTICLE I OF THE OHIO CONSTITUTION.

                                               I, II

      {¶17} Appellant, in her two assignments of error, challenges the trial court denial

of her Motion to Suppress.

      {¶18} 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, 437 N.E.2d 583 (1982); State v. Klein, 73 Ohio App.3d 486, 597 N.E.2d

1141(4th Dist.1991); State v. Guysinger, 86 Ohio App.3d 592, 621 N.E.2d 726(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, 619

N.E.2d 1141 (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
Fairfield County, Case No. 16-CA-45                                                   7


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, 641 N.E.2d 1172 (8th Dist.1994); State v. Claytor, 85 Ohio App.3d 623, 620

N.E.2d 906 (4th Dist.1993); Guysinger, supra. As the United States Supreme Court held

in Ornelas v. U.S., 517 U.S. 690, 116 S.Ct. 1657, 1663, 134 L.Ed.2d 911 (1996), “[A]s a

general matter determinations of reasonable suspicion and probable cause should be

reviewed de novo on appeal.”

      {¶19} We note that, in the case sub judice, Officer Sims testified that he pulled his

cruiser behind appellant’s vehicle, effectively blocking it in. Courts have generally held

that, if an officer positions his cruiser so that a person cannot exit a parking lot without

asking the officer to move, the officer has exhibited a show of authority constituting a

seizure. State v. Wallace, 145 Ohio App.3d 116, 122–23, 761 N.E.2d 1143 (6th Dist.

2001); State v. Inabnitt, 76 Ohio App.3d 586, 589–90, 602 N.E.2d 740 ( 2nd Dist. 1991).

       {¶20} The issue is whether or not Officer Sims had reasonable suspicion to

conduct an investigatory stop. A traffic stop constitutes a seizure of a person under the

Fourth Amendment of the United States Constitution. Whren v. United States, 517 U.S.

806, 809–810, 116 S.Ct. 1769, 135 L.Ed.2d 89 (1996). In Terry v. Ohio, 392 U.S. 1, 22,

88 S.Ct. 1868 (1968), the United States Supreme Court determined “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
Fairfield County, Case No. 16-CA-45                                                   8


which, taken together with rational inferences from those facts, reasonably warrant that

intrusion.” Id. at 21. 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, 414 N.E.2d 1044, paragraph one of the syllabus (1980).

       {¶21} However, courts also recognize that a community-caretaking/emergency-

aid exception to the Fourth Amendment warrant requirement is necessary to allow police

to respond to emergency situations where life or limb is in jeopardy. State v. Dunn, 131

Ohio St.3d 325, 2012-Ohio-1008, 964 N.E.2d 1037, ¶ 21. In dealing with this exception,

“[t]he key issue is whether the officers ‘had reasonable grounds to believe that some kind

of emergency existed * * *. The officer must be able to point to specific and articulable

facts, which, taken with rational inferences from those facts, reasonably warrant intrusion

into protected areas.’ ” State v. White, 175 Ohio App.3d 302, 2008-Ohio-657, 886 N.E.2d

904, ¶ 17 (9th Dist.). (Citations omitted).

       {¶22} In the case sub judice, there was testimony that an employee of the drive-

thru informed Officer Sims that one vehicle had rear-ended another and that the driver of

the rear vehicle, a female, seemed “just not right.” Transcript at 31. The employee shortly

thereafter stopped the Officer again and told him that the vehicle had not left the drive-

thru property but was parked on the side of the building. We find, based on these facts,

that Officer Sims had reasonable grounds to believe that an emergency existed and that

his initial investigative detention was not unreasonable.

       {¶23} The next issue for determination is whether or not Officer Sims’ prolonged

detention of appellant to summon a drug-sniffing dog to conduct a warrantless search of

appellant’s vehicle was unreasonable. “[A]n investigative detention must be temporary
Fairfield County, Case No. 16-CA-45                                                     9

and last no longer than is necessary to effectuate the purpose of the stop.” Florida v.

Royer, 460 U.S. 491, 500, 103 S.Ct. 1319, 75 L.Ed.2d 229 (1983). Indeed, “[t]he

lawfulness of the initial stop will not support a fishing expedition for evidence of crime.”

State v. Gonyou, 108 Ohio App.3d 369, 372, 670 N.E.2d 1040 (6th Dist.1995). Still, “the

detention of a stopped driver may continue beyond the [normal time] frame when

additional facts are encountered to give rise to a reasonable, articulable suspicion of

criminal activity beyond that which prompted the initial stop.” State v. Batchili, 113 Ohio

St.3d 403, 2007-Ohio-2204, 865 N.E.2d 1282, ¶ 15.

       {¶24} As noted by appellant, Officer         Sims, during the suppression hearing,

testified that at the time the canine walked around appellant's vehicle, he had already

received information that appellant was valid and had no restrictions and that he was not

investigating any type of DUI stop, having determined that appellant was not under the

influence of alcohol or drugs. He further testified that he was not, at that time, investigating

or detaining appellant because he was concerned about her well-being or ability to drive

and that he did not issue her any traffic citation. He further agreed that he was not

detaining her for purpose of preparing a report related to the earlier accident. We find,

based on the foregoing, that the prolonged investigative detention of appellant exceeded

the purpose of the initial stop of appellant and was not based on reasonable, articulable

suspicion of criminal activity beyond that which prompted the initial stop.

       {¶25} Based on the foregoing, we find that the trial court erred in denying

appellant’s Motion to Suppress.

       {¶26} Appellant’s first assignment of error is, therefore, overruled, while

appellant’s second assignment of error is sustained.
Fairfield County, Case No. 16-CA-45                                              10



      {¶27} Accordingly, the judgment of the Fairfield County Court of Common Pleas

is reversed and this matter is remanded for proceedings consistent with this Opinion.

By: Baldwin, J.

Earle Wise, J. concur.

Hoffman, P.J., concurs separately
Fairfield County, Case No. 16-CA-45                                                11

Hoffman, P.J., concurring

        {¶28} I concur in the majority’s analysis and disposition of Appellant’s second

assignment of error.

        {¶29} However, I would also sustain Appellant’s first assignment of error. Officer

Sims was told neither vehicle was damaged and neither of the drivers wanted anything

done.    The fact the drive-thru attendant described Appellant as “just not right” is

insufficient to justify Appellant’s detention. Although certainly grounds to approach the

vehicle and question Appellant, these circumstances do not provide reasonable,

articulable facts to justify a stop.
