[Cite as State v. Hipp, 2013-Ohio-1684.]


                                        COURT OF APPEALS
                                      HOLMES COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT

STATE OF OHIO                                     JUDGES:
                                                  Hon. William B. Hoffman, P.J.
        Plaintiff-Appellee                        Hon. John W. Wise, J.
                                                  Hon. Craig R. Baldwin, J.
-vs-
                                                  Case No. 12CA013
PAMELA HIPP

        Defendant-Appellant                       OPINION




CHARACTER OF PROCEEDING:                       Appeal from the Holmes County Municipal
                                               Court, Case No. 1200390


JUDGMENT:                                       Reversed and Remanded


DATE OF JUDGMENT ENTRY:                        April 25, 2013


APPEARANCES:


For Plaintiff-Appellee                         For Defendant-Appellant


CHRISTINE C. WILLIAMS                          ANDREW G. HYDE
Assistant Prosecuting Attorney                 144 North Water Street
Holmes County, Ohio                            Loudonville, Ohio 44842
164 East Jackson Street
Millersburg, Ohio 44654
Holmes County, Case No. 12CA013                                                          2

Hoffman, P.J.


       {¶1}   Defendant-appellant Pamela Hipp appeals the July 31, 2012 Judgment

Entry entered by the Holmes County Municipal Court denying her motion to suppress.

Plaintiff-appellee is the state of Ohio.

                            STATEMENT OF THE FACTS AND CASE

       {¶2}   On March 9, 2012, Jack Butler, an employee of Speedway gas station in

Millersburg, Ohio observed Appellant pull into the station nearly hitting a cement barrier.

Appellant had parked at an unusual angle, and entered the gas station. Butler then

observed a strong odor of alcohol on Appellant's person. He also observed Appellant

stumbling when walking.

       {¶3}   Upon Appellant's driving away from the premises, Butler called 911, giving

the dispatcher the vehicles make, model and license plate number. Butler indicated to

the dispatcher only that he had observed an odor of alcohol on Appellant's person and

he believed she was possibly intoxicated.

       {¶4}   Upon receiving the report from dispatch, Deputy Brook Strother of the

Holmes County Sheriff's Department observed the vehicle at an ATM machine at

Commercial & Savings Bank.          Deputy Stother pulled in and approached Appellant,

eventually initiating a stop.

       {¶5}   Appellant was subsequently charged with operating a vehicle while

intoxicated, in violation of R.C. 4511.19(A)(1)(a) and/or 4511.19(A)(1)(d).      Appellant

filed a motion to suppress. The trial court conducted a hearing on the motion. Via

Judgment Entry of July 31, 2012, the court denied the motion to suppress.
Holmes County, Case No. 12CA013                                                           3


       {¶6}   Thereafter, Appellant entered into plea negotiations, ultimately entering a

plea of no contest to the charge of violation of R.C. 4511.19(A)(1)(a).

       {¶7}   Appellant now appeals, assigning as error,

       {¶8}   “I.   THE     TRIAL      COURT       VIOLATED        THE      APPELLANT’S

CONSTITUTIONAL RIGHTS UNDER THE FOURTH AMENDMENT BY REFUSING TO

SUPPRESS EVIDENCE OBTAINED DURING A TRAFFIC STOP AFTER THE STATE

FAILED TO PRESENT SPECIFIC, ARTICULABLE FACTS TO SUPPORT A

REASONABLE SUSPICION OF CRIMINAL ACTIVITY.”

       {¶9}   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. See: State v. Klein, 73

Ohio App.3d 486 (1991), State v. Guysinger, 86 Ohio App.3d 592 (1993). Second, an

appellant may argue the trial court failed to apply the correct law to the findings of fact.

In that case, an appellate court can reverse the trial court for committing an error of law.

See: State v. Williams, 86 Ohio App.3d 37 (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, an appellant may argue the trial court has incorrectly applied the law

in deciding the ultimate or final issue raised in the motion to suppress. In reviewing this

type of claim, an appellate court must give deference to the trial court and is governed

by an abuse of discretion standard; i.e., it must determine whether the trial court's

subjective determination of the ultimate issue in the case was unreasonable, arbitrary or
Holmes County, Case No. 12CA013                                                             4

unconscionable. Blakemore v. Blakemore, 5 Ohio St.3d 217 (1983). It is with this

framework in mind that we address the appellant's assignment of error.

       {¶10} An investigative stop does not violate the Fourth Amendment to the United

States Constitution if the police have reasonable suspicion “the person stopped is, or is

about to be, engaged in criminal activity.” United States v. Cortez (1981), 449 U.S. 411,

417, 101 S.Ct. 690, 66 L.Ed.2d 621. Reasonable suspicion can arise from information

that is less reliable than that required to show probable cause. Alabama v. White

(1990), 496 U .S. 325, 330, 110 S.Ct. 2412, 110 L.Ed.2d 301. But it requires something

more than an “inchoate and unparticularized suspicion or ‘hunch’.” Terry v. Ohio (1968),

392 U.S. 1, 27, 88 S.Ct. 1868, 20 L.Ed.2d 889. “[T]he Fourth Amendment requires at

least a minimal level of objective justification for making the stop.” Illinois v. Wardlow

(2000), 528 U.S. 119, 123, 120 S.Ct. 673, 145 L.Ed.2d 570.

       {¶11} “Where the information possessed by the police before the stop was solely

from an informant's tip, the determination of reasonable suspicion will be limited to an

examination of the weight to be given the tip and the reliability of the tip.” Id. at 299, 720

N.E.2d 507. Courts have generally identified three classes of informants: the

anonymous informant, the known informant from the criminal world who has provided

previous reliable tips, and the identified citizen informant. Id. at 300, 720 N.E.2d 507. An

identified citizen informant may be highly reliable, and therefore a strong showing as to

other indicia of reliability may be unnecessary. Id. Thus, courts have routinely credited

the identified citizen informant with greater reliability. Id.

       {¶12} In State v. Burnap this Court held,
Holmes County, Case No. 12CA013                                                             5


       {¶13} "The Tenth District Court of Appeals addressed the issue presented herein

in State v. Brant, 2001–Ohio 3994:

       {¶14} “'In this case, we must determine if Officer Fraley had a reasonable

suspicion, based on articulable facts, to stop Brant's vehicle. Brant argues that Officer

Fraley lacked sufficient information to justify a Terry stop. In particular, Brant argues that

the officer had no personal knowledge which would lead him to believe that Brant was

violating the law. Specifically, Brant contends that the facts provided by Mr. Bunting,

even if known to Officer Fraley, were not sufficient enough to demonstrate a reasonable

and articulable suspicion that Brant was engaged in unlawful behavior. We agree.

       {¶15} “'This court has previously held that ‘the simple corroboration of neutral

details describing the suspect or other conditions existing at the time of the tip, without

more, will not produce reasonable suspicion for an investigatory stop.’ State v. Ramsey

(Sept. 20, 1990), Franklin App No. 89AP–1298, unreported. ‘A tip which standing alone

would lack sufficient indicia of reliability may establish reasonable suspicion to make an

investigatory stop if it is sufficiently corroborated through independent police work.’ Id;

Adams v. Williams (1972), 407 U.S. 143, 147 (when a tip lacks an indicia of reliability,

further investigation is required before an investigatory stop of the suspect's vehicle will

be authorized).'

       {¶16} “' * * *

       {¶17} “'Careful review of the record indicates that although the tip was reliable, it

lacked sufficient information to provide reasonable suspicion that Brant was operating a

motor vehicle while under the influence of alcohol. Mr. Bunting provided the Grove City

Police Department dispatcher with the color of Brant's vehicle along with the license
Holmes County, Case No. 12CA013                                                                6


plate number. Mr. Bunting also indicated that Brant was honking his horn for ten

minutes, his shirt was on backwards and inside out and his speech was very slow.

While it is not clear if the dispatcher relayed all of this information to Officer Fraley, Mr.

Bunting nonetheless failed to indicate that he witnessed any traffic violations, unlawful

behavior, or evidence of impaired driving. Additionally, even though Officer Fraley

attempted to further investigate the tip, his independent police work proved to be

fruitless. If Officer Fraley had observed erratic driving, then sufficient indicia of reliability

would have been present to conduct the investigatory stop. Under the totality of the

circumstances, Officer Fraley lacked a reasonable and articulable suspicion to stop

Brant's vehicle. Ramsey, supra. Since Officer Fraley's personal observations failed to

confirm Mr. Bunting's belief that Brant was intoxicated, we believe that Brant's Fourth

Amendment rights were violated and, as such, Brant's sole assignment of error is well-

taken and is sustained.'

       {¶18} "***

       {¶19} "Here, the gas station attendant reported to the police dispatch her opinion

a driver was intoxicated. The attendant did not indicate bad driving or inappropriate

activity or behavior in Appellant while operating his motor vehicle. The attendant did not

indicate any personal interaction with the driver or establish any personal experience as

foundation for forming an opinion the driver was intoxicated. While the citizen informant

was reliable, we find the conclusory information provided was insufficient to justify an

investigatory stop in the absence of any observations by Officer Ailes to demonstrate

Appellant was committing an offense.”
Holmes County, Case No. 12CA013                                                               7


       {¶20} In the case sub judice, Jack Butler testified at the June 20, 2012

suppression hearing,

       {¶21} “Prosecutor: Ok So you called the regular 911?

       {¶22} “Butler: Yes.

       {¶23} “Prosecutor: Ok Who answered the phone? Did a female…

       {¶24} “Butler: It was a male voice.

       {¶25} “Prosecutor: Ok And what did you say?

       {¶26} “Butler: I told them that I just had a customer come in. I had smelled

alcohol, alcohol on her breath. Umm, I had her license plate number right here and

read it off to him and told her, told him what direction the umm vehicle had pulled off in.

       {¶27} “Prosecutor: Ok Did you give a description of the vehicle besides the

license plate number?

       {¶28} “Butler: Yeah.     I gave like a full, as much as a description, I can’t

remember it right now.

       {¶29} “Prosecutor: Right, that’s Ok.

       {¶30} “Butler: But like full description, make, model, color.

       {¶31} “Prosecutor: Alright. And were you able to see whether it was a male or a

female at the time?

       {¶32} “Butler: Yes.

       {¶33} “Prosecutor: Ok And do you, can you remember if you gave a description

of the hair color and the size of the person?

       {¶34} “Butler: Umm, I didn’t give a description of the person, no.

       {¶35} “Prosecutor: Ok You just said it was a female?
Holmes County, Case No. 12CA013                                                    8


      {¶36} “Butler: Yes.

      {¶37} “Prosecutor: Ok Alright. And did they ask you any further questions?

      {¶38} “Butler: Ummm, at the time, or right now, that I can remember, no, they

just thanked me and that was it.”

      {¶39} Tr. at 7-8

      {¶40} Deputy Stother testified at the hearing,

      {¶41} “Prosecutor: Ok And sometime around 2:16 or between 2 and 2:30 in the

middle of, would have been the next day in the early morning hours were you

dispatched to a possible drunken driver?

      {¶42} “Officer: Yes

      {¶43} “Prosecutor: Ok Can you explain to the court when the nature of the

phone call or the dispatch phone call was about?

      {¶44} “Officer: Yes The information passed on to me was that a possible drunk

driver had just left The Speedway on South Washington Street and headed north bound

towards Millersburg.

      {¶45} “Prosecutor: And when they gave you that information was it an actual

dispatch, was the male dispatch officer that you heard on the tape?

      {¶46} “Officer: Yes

      {¶47} “Prosecutor: And when he gave you that information he relayed the make

and model of the car?

      {¶48} “Officer: Yes

      {¶49} “Prosecutor: Said the driver, ahh the license number?

      {¶50} “Officer: Yes
Holmes County, Case No. 12CA013                                                           9


        {¶51} “Prosecutor: And did he indicate whether it was a male or female?

        {¶52} “Officer: I believe he said it was a female driver.

        {¶53} “Prosecutor: Ok And what did you do with that information?

        {¶54} “Officer: I was on North Cay [sic] Street at the time. I proceeded through

the intersection at the square onto South Clay Street and at that time I observed a

vehicle coming northbound and as I got closer to the vehicle I saw that it may have

match [sic] the description of the vehicle that was given to the phone call. It turned right

onto Adams Street and I proceeded after it and saw that the license plate matched.

        {¶55} “Prosecutor: Ok Did you observe any bad driving or any activity that…

        {¶56} “Officer: No

        {¶57} “Prosecutor: What did you do next?

        {¶58} “Officer: The vehicle pulled into the CSB bank on South Clay Street. It

pulled up to the ATM and stopped. I came up behind the vehicle and stopped and got

out made contact with the driver while she was parked at the ATM.

        {¶59} “Prosecutor: And again do you confirm the [sic] it was the same make and

model, the license plate number of the information from dispatch?

        {¶60} “Officer: Yes.

        {¶61} “* * *

        {¶62} “Prosecutor: Ok Did you initially smell anything with the window coming

down?

        {¶63} “Officer: Yes. When the window went down, it was actually already down

when she was at the ATM, and as I talked her her [sic] and she was talking to me I

could smell an alcoholic beverage on her breath.”
Holmes County, Case No. 12CA013                                                         10


       {¶64} Tr. at 14-16

       {¶65} Upon review of the evidence presented at the suppression hearing, we

find similar to as we did in Burnap the gas station attendant did not sufficiently indicate

bad driving or inappropriate activity or behavior to indicate Appellant was operating a

vehicle while intoxicated prior to Appellant’s stop. The facts provided by Jack Butler,

when relayed to Deputy Strother, were insufficient to demonstrate a reasonable and

articulable suspicion Appellant was engaged in unlawful behavior. Officer Strother did

not himself observe Appellant engage in any unlawful activity.              The additional

information obtained by law enforcement after the stop cannot be used to retroactively

support a reasonable and articulable suspicion of criminal activity. Accordingly, we

conclude the trial court erred in denying Appellant's motion to suppress.

       {¶66} The judgment of the Holmes County Municipal Court is reversed, and the

matter remanded to that court for further proceedings in accordance with the law and

this opinion.

By: Hoffman, P.J.

Wise, J. and

Baldwin, J. concur
                                             s/ William B. Hoffman _________________
                                             HON. WILLIAM B. HOFFMAN


                                             s/ John W. Wise _____________________
                                             HON. JOHN W. WISE


                                             s/ Craig R. Baldwin ___________________
                                             HON. CRAIG R. BALDWIN
Holmes County, Case No. 12CA013                                                       11


            IN THE COURT OF APPEALS FOR HOLMES COUNTY, OHIO
                        FIFTH APPELLATE DISTRICT


STATE OF OHIO                               :
                                            :
       Plaintiff-Appellee                   :
                                            :
-vs-                                        :         JUDGMENT ENTRY
                                            :
PAMELA HIPP                                 :
                                            :
       Defendant-Appellant                  :         Case No. 12CA013


       For the reasons stated in our accompanying Opinion, the judgment of the

Holmes County Municipal Court is reversed, and the matter is remanded to that court

for further proceedings in accordance with the law and this opinion. Costs to Appellee.




                                            s/ William B. Hoffman _________________
                                            HON. WILLIAM B. HOFFMAN


                                            s/ John W. Wise _____________________
                                            HON. JOHN W. WISE


                                            s/ Craig R. Baldwin ___________________
                                            HON. CRAIG R. BALDWIN
