[Cite as State v. Steinbrunner, 2012-Ohio-2358.]




                       IN THE COURT OF APPEALS OF OHIO
                           THIRD APPELLATE DISTRICT
                               AUGLAIZE COUNTY




STATE OF OHIO,

        PLAINTIFF-APPELLEE,                               CASE NO. 2-11-27

        v.

BLAKE STEINBRUNNER,                                       OPINION

        DEFENDANT-APPELLANT.




                    Appeal from Auglaize County Municipal Court
                          Trial Court No. 2010 TRC 07016

                                      Judgment Affirmed

                              Date of Decision: May 29, 2012




APPEARANCES:

        Andrew R. Bucher for Appellant

        R. Andrew Augsburger for Appellee
Case No. 2-11-27


SHAW, P.J.

       {¶1} Defendant-appellant Blake Steinbrunner (“Steinbrunner”) appeals the

October 24, 2011 judgment of the Auglaize County Municipal Court sentencing

him upon his conviction of operating a vehicle while under the influence of drugs

and/or alcohol (also known as an “OVI”), in violation of R.C. 4511.19(A)(1)(d), a

misdemeanor of the first degree.

       {¶2} The facts relevant to this appeal are as follows. On December 4,

2010, shortly before 4 a.m., Mark Johns (“Johns”) was in line at a McDonald’s

drive-thru in Wapakoneta behind a blue Hyundai later identified to be driven by

Steinbrunner. While in line, Johns observed that the person in the vehicle in front

of him was yelling and giving the employees at McDonald’s a “hard time.”

Thinking that this person sounded drunk, and feeling sorry for the McDonald’s

workers, Johns decided to call the police.

       {¶3} When Johns called the police, he identified himself giving his name

and contact information. Johns further provided a description of the vehicle in

front of him, which included the license plate number.        Johns then told the

dispatcher that he had observed the person in front of him in the McDonald’s

drive-thru for approximately fifteen minutes, that he “sound[ed] drunk as hell” and

that he was “cussing” and “yelling.”




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      {¶4} Officer Justin Marks (“Officer Marks”) received a call from the

dispatcher at roughly 3:52 a.m. alerting him to a possible impaired driver at

McDonald’s who was “yelling.” When Officer Marks arrived at the McDonald’s

he pulled up past Johns while Johns was still on the phone with the dispatcher and

identified the Steinbrunner vehicle. Shortly thereafter Steinbrunner pulled out of

the McDonald’s in the blue Hyundai. When Steinbrunner pulled out, Officer

Marks quickly got the attention of the drive-thru attendant and asked the attendant

whether the person in the car who had just pulled out was drunk or had been

drinking. The drive-thru attendant responded, “oh yea.”

      {¶5} Officer Marks pulled out of the McDonalds and almost immediately

turned on his lights and initiated an investigatory stop of Steinbrunner.

Steinbrunner’s blood alcohol concentration (“BAC”) registered at .152, in excess

of the legal limit. Steinbrunner was subsequently cited with operating a vehicle

while under the influence of alcohol and/or drugs, in violation of R.C.

4511.19(A)(1)(a), and operating a vehicle with a concentration of eight-

hundredths of one gram or more but less than seventeen hundredths of one gram

by weight of alcohol per two hundred ten liters of breath (hereinafter “operating a

vehicle with a prohibited BAC”), in violation of R.C. 4511.19(A)(1)(d), both

misdemeanors of the first degree.




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       {¶6} On December 8, 2010, Steinbrunner entered pleas of not guilty to both

charges. On April 14, 2011 Steinbrunner filed a motion to suppress alleging

several reasons that evidence should be suppressed. A hearing was set on the

motion for July 1, 2011. Prior to the hearing on the motion to suppress, the State

and Steinbrunner agreed that there would only be one issue at the hearing, namely,

whether there was a reasonable articulable suspicion to stop Steinbrunner based

upon the citizen-informant call.

       {¶7} On July 1, 2011 the hearing on the motion to suppress was held. At

the hearing the State called Johns and Officer Marks. The State also entered into

evidence the audio recording of Johns’ call to the police and the recording of the

traffic stop of Steinbrunner. Steinbrunner cross-examined both of the State’s

witnesses but did not put forth any evidence.

       {¶8} On July 18, 2011 the trial court entered its judgment overruling

Steinbrunner’s motion to suppress.

       {¶9} On October 24, 2011, Steinbrunner changed his plea to no contest to

the charge of operating a vehicle with a prohibited BAC, in violation of

4511.19(A)(1)(d), and the State dismissed the remaining charge without prejudice.

On that same date, Steinbrunner was found guilty of Operating a Vehicle with a

prohibited BAC. Steinbrunner was subsequently sentenced to 20 days in jail,

ordered to pay a fine of $875 and court costs, and his license was suspended for


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three months.1 The sentence was stayed pending appeal. It is from this judgment

that Steinbrunner appeals asserting the following assignment of error for our

review.

                                  ASSIGNMENT OF ERROR

         THE TRIAL [COURT] ERRED IN WHEN (sic) IT FOUND
         THE SEIZURE OF MR. STEINBRUNNER DID NOT
         VIOLATE THE FOURTH AMENDMENT, [OF THE] UNITED
         STATES CONSTITUTION OR ARTICLE I, § 14 OF THE
         OHIO CONSTITUTION[.]

         {¶10} In his sole assignment of error, Steinbrunner contends that Officer

Marks lacked reasonable suspicion to perform an investigatory stop and that

therefore the trial court erred in overruling his motion to suppress. Specifically

Steinbrunner claims Johns referred to a non-specific ‘he’ in his call to the police,

that Johns’ statement that the person in front of him in the drive-thru “sounds

drunk as hell” was insufficient to justify an investigatory stop and that Officer

Marks did not personally observe any traffic violation before stopping

Steinbrunner.

         {¶11} Appellate review of a decision on a motion to suppress evidence

presents mixed questions of law and fact. United States v. Martinez, 949 F.2d

1117, 1119 (11th Cir.1992). At a suppression hearing, the trial court assumes the


1
 The court ordered all of the jail time and $500 of the fine suspended on the conditions that Steinbrunner
complete a 72 hour driver intervention program, comply with any and all recommendations of the program,
submit to alcohol testing whenever requested in conjunction with the operation of a vehicle, and that he not
commit any criminal or jailable traffic offenses.

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role of trier of fact, and is, therefore, in the best position to resolve questions of

fact and evaluate witness credibility. State v. Carter, 72 Ohio St.3d 545, 552

(1995). As such, a reviewing court must accept a trial court’s factual findings if

they are supported by competent, credible evidence. State v. Guysinger, 86 Ohio

App.3d 592, 594 (4th Dist. 1993). The reviewing court then applies the factual

findings to the law regarding suppression of evidence. State v. Devanna, 3d Dist.

No 2-04-12, 2004-Ohio-5096, ¶ 9. An appellate court reviews the trial court’s

application of the law de novo. State v. Anderson, 100 Ohio App.3d 688, 691 (4th

Dist. 1995).

       {¶12} The Fourth and Fourteenth Amendments to the United States

Constitution generally prohibit warrantless searches and seizures, and any

evidence that is obtained during an unlawful search or seizure will be excluded

from being used against the defendant. Mapp v. Ohio, 367 U.S. 643, 649, 81 S.Ct.

1684 (1961). At a suppression hearing, the State bears the burden of establishing

that a warrantless search and seizure falls within one of the exceptions to the

warrant requirement, and that it meets Fourth Amendment standards of

reasonableness. City of Xenia v. Wallace, 37 Ohio St.3d 216 (1988), at paragraph

two of the syllabus; State v. Kessler, 53 Ohio St.2d 204, 207 (1978); City of

Maumee v. Weisner, 87 Ohio St.3d 295, 297 (1999) (Citation omitted).




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       {¶13} One exception to the warrant requirement is that a police officer may

conduct an investigative stop if there is a reasonable articulable suspicion of

criminal activity. State v. Keck, 3d. Dist. No. 5-03-27, 2004-Ohio-1396, ¶ 11;

State v. Bobo, 37 Ohio St.3d 177, 179 (1988); Berkemer v. McCarty, 468 U.S.

420, 439-440, 104 S.Ct. 3138 (1984). Notably the threshold is lower to justify an

investigatory stop than it is for probable cause to arrest. See State v. Devanna, 3d.

Dist. No. 2-04-12, 2004-Ohio-5096, ¶ 21. For an investigatory stop, an officer

needs only “‘specific and articulable facts which, taken together with rational

inferences from those fac[ts], reasonably warrant [the] intrusion.’” Maumee, 87

Ohio St.3d at 299, quoting Terry v. Ohio, 392 U.S. 1, 21 (1968).

       {¶14} In determining whether reasonable articulable suspicion exists, a

reviewing court must look to the totality of the circumstances. State v. Andrews,

57 Ohio St.3d 86, 87-88 (1991). Under this analysis, a court should consider

“both the content of the information possessed by police and its degree of

reliability.” Maumee, 87 Ohio St.3d at 299, quoting Alabama v. White, 496 U.S.

325, 330, 110 S.Ct. 2412 (1990).

       {¶15} An officer does not have to have personally observed a traffic

violation or criminal activity to justify detaining someone; rather, an officer can

rely on information transmitted to him through a dispatch or a flyer. Maumee at

297, quoting United States v. Hensley, 469 U.S. 221, 231, 105 S.Ct. 675, 681


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(1985); State v. Bailey, 3d. Dist. No. 8-07-02, 2008-Ohio-2254, ¶ 17; Devanna,

supra, at ¶ 13. Moreover, “[a] telephone tip can, by itself, create reasonable

suspicion justifying an investigatory stop where the tip has sufficient indicia of

reliability.” Maumee, supra, at paragraph two of the syllabus. In expanding upon

this issue, the Ohio Supreme Court held in City of Maumee v. Weisner that

       the admissibility of the evidence uncovered during * * * a stop
       does not rest upon whether the officers relying upon a dispatch or
       a flyer “were themselves aware of the specific facts which led
       their colleagues to seek assistance.” It turns instead upon
       “whether the officers who issued the flyer” or dispatch possessed
       reasonable suspicion to make the stop.

Id. at 297, quoting Hensley, supra at 231. (Emphasis sic.)

       {¶16} In this case, on December 4, 2010 shortly before 4 a.m. Mark Johns

was in line at a McDonald’s drive-thru in Wapakoneta behind a vehicle later

identified to be driven by Steinbrunner. (Tr. at 11). While in line Johns observed

the person in front of him giving the McDonald’s employees a “hard time.” (Id.)

Johns said that the person was “out of control” and sounded drunk so Johns called

the police. (State’s Ex. A).

       {¶17} When Johns called the police, he spoke with a dispatcher and gave

the dispatcher his name and contact information. (State’s Ex. A). Johns identified

the vehicle that was still in front of him in the McDonald’s drive-thru as a blue

Hyundai and provided the license plate number. (Id.) Johns told the dispatcher

that the person in front of him was “cussing and yelling up a storm” and that the

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Case No. 2-11-27


person “sounds drunk as hell.” (Id.) Johns said that he had been observing the

person in front of him for approximately fifteen minutes and further described the

person in front of him as “out of control.” (Id.) Johns never specifically said “the

driver” of the blue Hyundai on the call to the police; however, Johns did testify at

the suppression hearing that he was aware another person was in the Hyundai

when he made the call. (Tr. at 11).

       {¶18} While Johns was still speaking with the dispatcher, the dispatcher

notified Officer Marks, who was in the area, of a possible “.19,” meaning a

possible impaired driver, and that the person was “yelling.” (Tr. at 15-16) In

addition, the dispatcher relayed the vehicle’s description and its license plate

number to Officer Marks. (Id.) Less than two minutes later, while Johns was still

on the phone with the dispatcher, Officer Marks arrived at the McDonald’s.

(State’s Ex. A). When Johns saw the officer arrive he got off the phone. (Id.)

       {¶19} Officer Marks waited while Steinbrunner’s car exited the drive-thru.

(Tr. at 16). Officer Marks then pulled up to the drive-thru window and got the

attention of the drive-thru attendant and asked if the driver of the blue Hyundai

was drunk or if he had been drinking. (Id.) The drive-thru attendant responded,

“oh yea.” (Tr. at 17). At that point, Officer Marks left the McDonald’s and

pursued Steinbrunner. (Tr. at 18). Almost immediately Officer Marks turned on

his overhead lights and initiated an investigatory stop.      (Id.)   Officer marks


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testified that he stopped Steinbrunner’s vehicle within 100 yards of the

McDonald’s. (Tr. at 30).

           {¶20} On appeal, Steinbrunner specifically challenges the validity of the

investigatory stop, not his subsequent arrest. Steinbrunner claims Johns referred

to a non-specific ‘he’ in his call to the police, that Johns’ statement that the person

in front of him in the drive-thru “sounds drunk as hell” was insufficient to justify a

stop and that Officer Marks did not personally observe any traffic violation before

stopping Steinbrunner.

           {¶21} Despite Steinbrunner’s claims to the contrary, there is more evidence

than Johns’ statement that the person in front of him in the drive through “sounds

drunk as hell” to create a reasonable articulable suspicion of criminal activity. On

Johns’ call to the dispatcher, which was entered into evidence at the suppression

hearing, Johns specifically identified himself and the car in front of him.2 (State’s

Ex. A). In addition, Johns said the person in front of him was “out of control,”

“cussing” and “yelling” for approximately fifteen minutes prior to Johns making

the call. (State’s Ex. A). Moreover, Officer Marks came to the McDonald’s

drive-thru while Johns was still speaking with the dispatcher and was able to

observe where Steinbrunner’s vehicle was in line.                           (Tr. at 16).       Then, when

Steinbrunner exited the McDonald’s, Officer Marks quickly got the attention of



2
    It was conceded by Steinbrunner in his brief that Johns was an identified citizen informant.

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the drive-thru attendant and asked if the driver was drunk or had been drinking.

(Tr. at 17).   The attendant responded “oh yea.”      (Id.)   Later, Officer Marks

returned to the McDonalds and identified the McDonalds employee. (Id.)

       {¶22} The record makes clear that the tip itself contains more information

than Steinbrunner argues; however, the record also makes clear that Officer Marks

was not relying solely on the tip. Officer Marks was also able to get some

corroboration from the McDonald’s attendant that the tip was accurate. It was

only after this corroboration that Officer Marks initiated the investigatory stop.

Based on the foregoing, under the totality of the circumstances, we hold that there

was a reasonable articulable suspicion of criminal activity for Officer Marks to

conduct an investigatory stop.

       {¶23} For the foregoing reasons, Steinbrunner’s assignment of error is

overruled and the judgment of the Municipal Court of Auglaize County is

affirmed.

                                                               Judgment Affirmed

PRESTON, J., concurs.

WILLAMOWSKI, J., concurs in Judgment Only.

/jlr




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