[Cite as State v. Kilbarger, 2012-Ohio-1521.]


                              IN THE COURT OF APPEALS OF OHIO
                                 FOURTH APPELLATE DISTRICT
                                      HOCKING COUNTY

STATE OF OHIO,                        :    Case No. 11CA23
                                      :
     Plaintiff-Appellant,             :
                                      :    DECISION AND
     v.                               :    JUDGMENT ENTRY
                                      :
ANTHONY L. KILBARGER,                 :    RELEASED 03/19/12
                                      :
     Defendant-Appellee.              :
______________________________________________________________________
                            APPEARANCES:

Laina Fetherolf, Hocking County Prosecutor, and William L. Archer, Jr., Hocking County
Assistant Prosecutor, Logan, Ohio, for appellant.

James R. Kingsley, Kingsley Law Office, Circleville, Ohio, for appellee.
______________________________________________________________________
Harsha, J.

        {¶1}     The State of Ohio appeals the trial court’s decision to dismiss charges

against Anthony Kilbarger for operating a vehicle under the influence of alcohol, a drug

of abuse, or a combination of them (“OVI”). The trial court concluded that law

enforcement lacked probable cause to “detain or arrest” Kilbarger and granted his

“motion to dismiss for lack of probable cause to arrest[.]” We agree the trial court erred

but for different reasons than those advanced by the State. Although Kilbarger partially

framed his motion as one for dismissal, the proper remedy for a Fourth Amendment

violation is the suppression of evidence, not dismissal of the charges. Moreover, the

trial court incorrectly found that the patrolman needed probable cause to detain

Kilbarger. In reality to initiate the traffic stop the patrolman only needed a reasonable,

articulable suspicion that Kilbarger was engaged in or about to be engaged in criminal

activity. And because this erroneous finding evidently served as the foundation for the
Hocking App. No. 11CA23                                                                           2


court’s conclusion that the patrolman lacked probable cause to arrest Kilbarger, that

conclusion is likewise erroneous. Accordingly, we reverse the trial court’s decision and

remand so that the court can treat Kilbarger’s motion as one to suppress evidence and

utilize the appropriate legal standards for deciding such a motion.

                                            I. Facts

       {¶2}     Patrolman Ryan Culbertson of the Logan Police Department arrested

Kilbarger for OVI and a grand jury subsequently indicted him on two counts of OVI. In

response Kilbarger filed a “multi-branch” motion asking the court to: 1.)

“dismiss/suppress/in limine the indictment and all evidence” because Culbertson

stopped him without reasonable articulable suspicion; 2.) suppress all evidence

because Culbertson “further detained” him without reasonable suspicion; 3.) exclude

“for purposes of probable cause and/or at trial his Field Sobriety Test results”; 4.)

suppress any statements made in violation of his Miranda rights; 5.) “suppress all

evidence for the reason he was arrested without probable cause that he was then and

there under the influence of alcohol”; 6.) “exclude for purposes of probable cause and/or

at trial his refusal to submit to Intoxilizer 8000 breath test”; 7.) exclude at trial his blood

test results.

       {¶3}     The trial court held a hearing on the motion, which it orally characterized

as a motion to suppress hearing. Culbertson testified that while on patrol, he observed

Kilbarger driving. He recognized Kilbarger because people had previously pointed him

out to Culbertson. People had also told Culbertson that Kilbarger had a suspended

license. Culbertson contacted dispatch, got confirmation that Kilbarger had a

suspended license, and initiated a traffic stop. According to Culbertson, he received
Hocking App. No. 11CA23                                                                   3


this confirmation in the time it took Kilbarger to drive half a block. Culbertson

acknowledged that typically for a driving under suspension offense, he issues a citation,

so he had no intent to arrest Kilbarger when he initiated the stop.

       {¶4}   Kilbarger parked his vehicle, jumped out, and started to walk towards the

cruiser before Culbertson stopped it. Kilbarger “appeared to be off balance” while he

walked. Culbertson told Kilbarger to return to his vehicle. Culbertson then approached

Kilbarger’s vehicle and asked for his driver’s license, registration, and proof of

insurance. Kilbarger could only produce his registration and proof of insurance.

Culbertson smelled “the odor of an alcoholic beverage” coming from the vehicle. He

noticed that Kilbarger’s eyes were glassy and bloodshot. He asked Kilbarger if he had

anything to drink that day, which Kilbarger denied. Culbertson noticed Kilbarger’s

speech was “slurred but not real bad.”

       {¶5}   Culbertson asked Kilbarger to exit the vehicle for field sobriety tests.

When Kilbarger complied, he was “unstable” and “used the door for support.”

Culbertson had Kilbarger perform three field sobriety tests: the horizontal gaze

nystagmus (HGN) test, the walk and turn, and the one leg stand. Culbertson observed

six clues during the HGN test and observed additional clues during the other tests. On

cross-examination, Culbertson acknowledged certain procedures he did not follow

during these tests.

       {¶6}   Culbertson testified he arrested Kilbarger for OVI and took him to the

police department where he refused to take a breath test. Culbertson prepared an

affidavit for an emergency search warrant application to get a blood draw and testified

at a hearing on the application. In the affidavit, Culbertson averred that Kilbarger’s
Hocking App. No. 11CA23                                                                  4


speech was “slurred or unintelligible.” But he admitted that at the hearing on the

application, he testified that Kilbarger’s speech was not slurred. In the affidavit,

Culbertson also averred that he determined Kilbarger was the “vehicle operator at the

time of operation” through “admissions of the offender” and “observations of the

investigating officer.” But Culbertson acknowledged that Kilbarger never admitted that

he was driving the vehicle. Culbertson obtained a search warrant, and the results

indicated Kilbarger had a blood alcohol content of 0.155.

       {¶7}   The trial court issued the following decision after the hearing:

               This cause came on regularly for hearing on the defendant’s motion
       to dismiss for lack of probable cause to arrest the defendant. The Court
       finds the motion well-taken and sustains the same.

                                      Findings of Fact

   1) The defendant was observed by Logan Police Department Patrolman
      Ryan Culbertson * * * passing by in a Toyota 4-Runner.

   2) The defendant was not driving erratically in any way.

   3) Officer Culbertson claims to have fallen in behind the defendant and called
      his dispatcher to “run” the defendant’s license plate. According to the
      officer, the dispatcher then obtained the registration and the defendant’s
      social security number and ran this through LEADS which revealed the
      defendant’s license was under suspension. The officer claims this was
      done in 4-5 seconds before he turned on his overhead lights to stop the
      defendant. Based upon the evidence and testimony, the Court finds this
      claim is not credible.

   4) Next, the defendant pulled into an alley and exited his vehicle and walked
      toward the cruiser. Patrolman Culbertson then ordered him back into his
      vehicle, approached the defendant’s vehicle and began to question him.
      Although the officer testified that the defendant had slurred speech and
      checked the box on the boilerplate search warrant affidavit indicating so,
      he testified earlier before municipal Judge Wallace that the defendant’s
      speech was not slurred. Therefore this testimony is unreliable.

   5) The officer administered a horizontal gaze nystagmus test, to which he
      testified there were 4 clues. He also told the defendant to perform a one-
Hocking App. No. 11CA23                                                                    5


       leg stand test, but the officer stopped the test after 8 seconds and failed to
       advise the defendant to continue as the officer admitted is proper protocol.

   6) In the affidavit for a search warrant (for the defendant’s blood draw) the
      officer marked “admitted to consuming . . . alcohol in some amount prior to
      the vehicle operation” but testified before this court that he didn’t admit
      driving.

   7) The officer also gave other improper instructions when observing the field
      sobriety tests.

   8) The Court is not unaware that the defendant has a horrible driving record
      and faces revocation and a large jail sentence in Fairfield County as a
      result of this arrest. The Court has also been made aware by the
      prosecutor, in the presence of defense counsel, that the public perception
      is that the defendant “gets out of lots of these.” However, he is still
      entitled to the protection of the constitution, in spite of his behavior.

                                    Conclusion of Law

               Yet the court finds there was probable cause for the issuance of the
       search warrant because Judge Wallace had a right to rely on information
       presented to him in affidavit form and by direct testimony. Whether the
       officer “ran” the defendant’s license, registration and LEADS before or
       after he saw him driving is irrelevant in regard to the traffic stop.

              However, the officer testified that he has virtually never arrested or
       taken a person into custody who is merely under suspension. Therefore,
       lacking credible evidence of probable cause, the officer had no right to
       detain or arrest the defendant for DUI. The matter is dismissed.

                                  II. Assignment of Error

       {¶8}   The State assigns one error for our review:

       I.     THE TRIAL COURT ERRED IN GRANTING APPELLEE’S
              MOTION TO DISMISS FOR LACK OF PROBABLE CAUSE TO
              ARREST.

                                III. Propriety of Dismissal

       {¶9}   In its sole assignment of error, the State contends that the trial court erred

when it granted Kilbarger’s “motion to dismiss for lack of probable cause to arrest.”

Despite the trial court’s characterization of the motion, both parties apply the standard of
Hocking App. No. 11CA23                                                                     6


review for a motion to suppress in their briefs. The State claims that “[i]t appears from

the trial court’s Decision and Judgment Entry that the initial stop on Appellee was not

invalidated by the court.” (Appellant’s Br. 7). Therefore, the State does not address the

propriety of the initial traffic stop and proceeds to argue that there was both

“reasonable, articulable suspicion” for Culbertson to arrest Kilbarger for OVI (which as

we explain below is not the correct legal standard) and “probable cause” for the arrest.

(Appellant’s Br. 7, 10).

       {¶10} We agree that the trial court erred when it dismissed the case but for

different reasons than those advanced by the State. Although Kilbarger characterized

his multi-branch motion in part as a motion to dismiss, “[a] motion to dismiss is generally

used when a defendant requests a court to dismiss an entire action based upon some

clearly defined transgression (e.g. defects in indictment or complaint, speedy trial

violations, discovery violations).” State v. Hehr, Washington App. No. 04CA10, 2005-

Ohio-353, at ¶3, fn. 2. Although Kilbarger cites Crim.R. 48 as supportive of dismissal in

this case, see Appellee’s Brief at 17, there is no provision in Ohio’s Rules of Criminal

Procedure for “a motion to dismiss a criminal case founded on the lack of probable

cause.” State v. Marcinko, Washington App. No. 06CA51, 2007-Ohio-1166, at ¶11,

quoting State v. Hartley (1988), 51 Ohio App.3d 47, 48, 554 N.E.2d 950; See Hehr at

¶3, fn. 2. Moreover, there is no provision in the Rules of Criminal Procedure for

summary judgment or a pretrial motion to challenge the legal sufficiency of the

evidence. Hehr at ¶3, fn. 2. See also State v. Brustowski (Mar. 24, 1999), Summit App.

No. 19221, 1999 WL 291906, at *1 (“A motion to dismiss that goes beyond the face of

charges against a defendant can only be presented as a motion for acquittal pursuant to
Hocking App. No. 11CA23                                                                              7

Crim.R. 29(A) after the prosecution has presented its case.”) And see generally, State

v. Nihiser, Hocking App. No. 03CA21, 2004-Ohio-4067, which discusses Crim.R. 48

and the Supreme Court of Ohio’s decision in State v. Busch (1996), 76 Ohio St.3d 613,

669 N.E.2d 1125.1

       {¶11} The trial court granted Kilbarger’s motion based on alleged Fourth

Amendment violations. “The proper remedy for Fourth Amendment violations is

suppression of the evidence, not dismissal of the charges.” Hehr at ¶3, fn. 2. Thus a

lack of justification to detain a defendant or the “lack of probable cause to arrest can

only result in suppression of illegally obtained evidence, not in dismissal of charges.”

State v. Flanagan, Lawrence App. No. 03CA11, 2003-Ohio-6512, at ¶1. “The result of a

finding of lack of probable cause is that all evidence derived from the unconstitutional

arrest is unavailable to the State in its case-in-chief.” Id. at ¶7, citing State v. Daily (Jan.

15, 1998), Athens App. No. 97CA25, 1998 WL 18139, in turn, citing Mapp v. Ohio

(1961), 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081. The State may continue

prosecution without the suppressed evidence if it chooses. Flanagan at ¶7. Therefore,

the trial court should have treated Kilbarger’s motion simply as one to suppress

evidence. Even if the court granted the motion and ultimately suppressed all the

evidence against Kilbarger, it would have been the State’s decision whether to continue

its prosecution, not the trial court’s.

       {¶12} Moreover, the trial court applied an improper analysis when it found that

Culbertson lacked probable cause to arrest Kilbarger. The Fourth Amendment to the

United States Constitution, as applied to the states through the Fourteenth Amendment,

1
 In the context of a preliminary hearing under Crim.R. 5(B) lack of probable cause to believe the
Defendant committed a felony would be an appropriate basis for discharging the accused. However we
deal here with a crime charged by the grand jury.
Hocking App. No. 11CA23                                                                   8


provides: “The right of the people to be secure in their persons, houses, papers, and

effects, against unreasonable searches and seizures, shall not be violated, and no

Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and

particularly describing the place to be searched, and the persons or things to be

seized.” Section 14, Article I of the Ohio Constitution also prohibits unreasonable

searches and seizures. Because Section 14, Article I and the Fourth Amendment

contain virtually identical language, the Supreme Court of Ohio has interpreted the two

provisions as affording the same protection. State v. Orr, 91 Ohio St.3d 389, 391, 2001-

Ohio-50, 745 N.E.2d 1036.

       {¶13} Searches and seizures conducted without a prior finding of probable

cause by a judge or magistrate are per se unreasonable under the Fourth Amendment,

subject to only a few specifically established and well-delineated exceptions. Katz v.

United States (1967), 389 U .S. 347, 357, 88 S.Ct. 507, 19 L.Ed.2d 576. Once the

defendant demonstrates that he was subjected to a warrantless search or seizure, the

burden shifts to the State to establish that the warrantless search or seizure was

constitutionally permissible. See Maumee v. Weisner, 87 Ohio St.3d 295, 297, 1999-

Ohio-68, 720 N.E.2d 507. In this case, law enforcement did not obtain a warrant for any

purpose prior to arresting Kilbarger.

       {¶14} “An officer’s temporary detention of an individual during a traffic stop

constitutes a seizure of a person within the meaning of the Fourth Amendment * * *.”

State v. Lewis, Scioto App. No. 08CA3226, 2008-Ohio-6691, at ¶14. “To be

constitutionally valid, the detention must be reasonable under the circumstances.” Id.

“A traffic stop is reasonable when an officer possesses probable cause to believe that
Hocking App. No. 11CA23                                                                      9

an individual has committed a traffic violation.” State v. Taylor, Washington App. No.

07CA11, 2008-Ohio-482, at ¶15, citing Whren v. United States (1996), 517 U.S. 806,

809, 116 S.Ct. 1769, 135 L.Ed.2d 89. “‘Probable cause’ is defined as a reasonable

ground of suspicion that is supported by facts and circumstances, which are sufficiently

strong to warrant a prudent person in believing that an accused person had committed

or was committing an offense.” State v. Jones, Washington App. No. 03CA61, 2004-

Ohio-7280, at ¶40, citing State v. Ratcliff (1994), 95 Ohio App.3d 199, 205, 642 N.E.2d

31.

       {¶15} Although probable cause “is certainly a complete justification for a traffic

stop,” it is not required. State v. Mays, 119 Ohio St.3d 406, 2008-Ohio-4539, 894

N.E.2d 1204, at ¶23. So long as “an officer’s decision to stop a motorist for a criminal

violation, including a traffic violation, is prompted by a reasonable and articulable

suspicion considering all the circumstances, then the stop is constitutionally valid.” Id.

at ¶8. Reasonable and articulable suspicion is obviously a lower standard than

probable cause. See id. at ¶23. To conduct an investigatory stop, the officer must be

able to point to specific and articulable facts which, taken together with rational

inferences derived from those facts, give rise to a reasonable suspicion that the

individual is engaged or about to be engaged in criminal activity. See State v. Williams

(1990), 51 Ohio St.3d 58, 60-61, 554 N.E.2d 108 (per curiam). “The propriety of an

investigative stop by a police officer must be viewed in light of the totality of the

surrounding circumstances.” State v. Freeman (1980), 64 Ohio St.2d 291, 414 N.E.2d

1044, at paragraph one of the syllabus.

       {¶16} Once a driver has been lawfully stopped, an officer may order the driver to
Hocking App. No. 11CA23                                                                       10

get out of the vehicle without any additional justification. State v. Huffman, Clark App.

No. 2010-CA-104, 2011-Ohio-4668, at ¶8. See Pennsylvania v. Mimms (1977), 434

U.S. 106, 111, fn. 6, 98 S.Ct. 330, 54 L.Ed.2d 331. However, “the officer must ‘carefully

tailor’ the scope of the stop ‘to its underlying justification,’ and the stop must ‘last no

longer than is necessary to effectuate the purpose of the stop.’” Marcinko, supra, at

¶26, quoting Florida v. Royer (1983), 460 U.S. 491, 500, 103 S.Ct. 1319, 75 L.Ed.2d

229. “An officer may lawfully expand the scope of the stop and may lawfully continue to

detain the individual if the officer discovers further facts which give rise to a reasonable

suspicion that additional criminal activity is afoot.” Id.

       {¶17} Thus, “[a]n officer conducting a routine traffic stop may * * * expand the

stop’s scope in order to investigate whether the individual stopped is under the influence

of alcohol and may continue to detain the individual to confirm or dispel his suspicions if

the officer observes additional facts during the routine stop which reasonably lead him

to suspect that the individual may be under the influence.” Id. at ¶28. This expanded

stop might include field sobriety tests. The results of field sobriety tests are admissible

at trial if the State presents clear and convincing evidence that the officer administered

the tests in substantial compliance with “the testing standards for any reliable, credible,

and generally accepted field sobriety tests that were in effect at the time the tests were

administered * * *.” R.C. 4511.19(D)(4)(b).

       {¶18} The standard for determining whether an officer had probable cause to

arrest an individual for OVI is whether, at the moment of arrest, the officer had sufficient

information, derived from a reasonably trustworthy source of facts and circumstances,

sufficient to cause a prudent person to believe that the suspect was operating a motor
Hocking App. No. 11CA23                                                                     11

vehicle while under the influence. See State v. Homan, 89 Ohio St.3d 421, 427, 2000-

Ohio-212, 732 N.E.2d 952 (superseded by statute on other grounds), citing Beck v.

Ohio (1964), 379 U.S. 89, 91, 85 S.Ct. 223, 13 L.Ed.2d 142 and State v. Timson (1974),

38 Ohio St.2d 122, 127, 311 N.E.2d 16. When making this determination, the trial court

should consider the totality of facts and circumstances surrounding the arrest. Id.

       {¶19} Contrary to the State’s position that the trial court upheld the initial traffic

stop, the trial court specifically found that Culbertson lacked probable cause to “detain

or arrest” Kilbarger. (Emphasis added). Thus the trial court found both the initial traffic

stop and the continued detention for field sobriety tests invalid for lack of probable

cause. However, as we explained above, the State did not have to demonstrate

probable cause existed for Culbertson to take those actions. The State only had to

show Culbertson had a reasonable, articulable suspicion that Kilbarger was driving

under suspension – a lower standard than probable cause – to initiate the traffic stop. If

the traffic stop was proper, Culbertson did not need any additional justification to order

Kilbarger out of the vehicle so long as the detention did not last longer than necessary

to effectuate the purpose of the stop. Moreover, Culbertson could lawfully expand the

scope of the stop and conduct field sobriety tests if he discovered additional facts that

gave rise to a reasonable, articulable suspicion that Kilbarger had been operating the

vehicle under the influence.

       {¶20} Kilbarger contends that “[s]ince the trial judge did not believe the officer in

any respect, then his basis for the stop was not believed, the stop was unconstitutional

warranting suppression of the evidence.” (Appellants’ Br. 4). However, even if we

accept the contention that the trial court did not believe Culbertson actually ran the
Hocking App. No. 11CA23                                                                     12


LEADs check, the court still applied the wrong legal standard to determine if the initial

stop was reasonable.

          {¶21} It appears the trial court concluded that Culbertson lacked probable cause

to arrest Kilbarger because he lacked “probable cause” to initially detain him; because

the initial detention was illegal, nothing Culbertson discovered after the initial stop could

be used to form the basis for probable cause to arrest Kilbarger. Clearly this analysis is

flawed because the court applied the wrong legal standard when it invalidated both the

traffic stop and the continued detention for field sobriety tests. Therefore, the court’s

ultimate conclusion that Culbertson lacked probable cause to arrest Kilbarger was

premised on an incorrect legal analysis of the original investigative stop and subsequent

continued detention to investigate a possible OVI.

          {¶22} We recognize that the court made other “conclusions of law” in its

decision, but none of those conclusions justify a decision to dismiss the indictment. For

instance, the court noted that Culbertson testified that he has “virtually never arrested or

taken a person into custody who is merely under suspension.” However, a traffic stop

and subsequent arrest is not invalid simply because the officer did not intend to arrest

the driver when he initiated the stop. As we have pointed out, subsequent events may

justify a formal arrest. In addition, the court found “probable cause for the issuance of

the search warrant” for the blood draw “because Judge Wallace had a right to rely on

information presented to him in affidavit form and by direct testimony.” However, the

propriety of the search warrant is irrelevant for determining whether Culbertson legally

detained and arrested Kilbarger because Culbertson obtained the warrant after the

arrest.
Hocking App. No. 11CA23                                                                 13


      {¶23} Accordingly, we find that the trial court erred when it dismissed the

charges against Kilbarger. We sustain the sole assignment of error, reverse the trial

court’s decision, and remand this matter for further proceedings, including a new

hearing on Kilbarger’s motion.

                                                         JUDGMENT REVERSED AND
                                                               CAUSE REMANDED.
Hocking App. No. 11CA23                                                                     14


                                    JUDGMENT ENTRY


    It is ordered that the JUDGMENT IS REVERSED and that the CAUSE IS
REMANDED. Appellee shall pay the costs.

       The Court finds there were reasonable grounds for this appeal.

      It is ordered that a special mandate issue out of this Court directing the Hocking
County Court of Common Pleas to carry this judgment into execution.

        IF A STAY OF EXECUTION OF SENTENCE AND RELEASE UPON BAIL HAS
BEEN PREVIOUSLY GRANTED BY THE TRIAL COURT OR THIS COURT, it is
temporarily continued for a period not to exceed sixty days upon the bail previously
posted. The purpose of a continued stay is to allow Appellant to file with the Supreme
Court of Ohio an application for a stay during the pendency of proceedings in that court.
If a stay is continued by this entry, it will terminate at the earlier of the expiration of the
sixty day period, or the failure of the Appellant to file a notice of appeal with the
Supreme Court of Ohio in the forty-five day appeal period pursuant to Rule II, Sec. 2 of
the Rules of Practice of the Supreme Court of Ohio. Additionally, if the Supreme Court
of Ohio dismisses the appeal prior to expiration of sixty days, the stay will terminate as
of the date of such dismissal.

      A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of
the Rules of Appellate Procedure. Exceptions.

Abele, P.J. & McFarland, J.: Concur in Judgment and Opinion.


                                            For the Court



                                            BY: ________________________
                                                William H. Harsha, Judge




                                  NOTICE TO COUNSEL

       Pursuant to Local Rule No. 14, this document constitutes a final judgment
entry and the time period for further appeal commences from the date of filing
with the clerk.
