[Cite as State vs. Hovatter, 2018-Ohio-2254.]


                                        COURT OF APPEALS
                                     FAIRFIELD COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT



STATE OF OHIO                                   :    JUDGES:
                                                :    Hon. W. Scott Gwin, P.J.
        Plaintiff-Appellee                      :    Hon. Patricia A. Delaney, J.
                                                :    Hon. Earle E. Wise, Jr., J.
-vs-                                            :
                                                :
JORDEN LEIGH HOVATTER                           :    Case No. 17-CA-37
                                                :
        Defendant-Appellant                     :    OPINION



CHARACTER OF PROCEEDING:                             Appeal from the Court of Common
                                                     Pleas, Case No. 17-CR-177




JUDGMENT:                                            Affirmed




DATE OF JUDGMENT:                                    June 7, 2018




APPEARANCES:

For Plaintiff-Appellee                               For Defendant-Appellant

JOEL C. WALKER                                       SCOTT P. WOOD
239 West Main Street                                 120 East Main Street
Suite 101                                            Suite 200
Lancaster, OH 43130                                  Lancaster, OH 43130
Fairfield County, Case No. 17-CA-37                                                        2

Wise, Earle, J.

       {¶ 1} Defendant-Appellant, Jorden Leigh Hovatter, appeals the June 29, 2017

judgment entry of the Court of Common Pleas of Fairfield County, Ohio, denying her

motion to suppress. Plaintiff-Appellee is the state of Ohio.

                         FACTS AND PROCEDURAL HISTORY

       {¶ 2} Shawn Woodgeard is a narcotics detective with the Fairfield-Hocking-

Athens Major Crimes Unit. Pursuant to a tip from a confidential informant, Detective

Woodgeard was made aware that appellant was selling methamphetamine from her

home. Three controlled buys were made from appellant in October and November 2016.

Appellant was not arrested because of an ongoing investigation involving additional

individuals.   She was subsequently arrested on April 4, 2017, because Detective

Woodgeard had been informed that she was planning on leaving the state.

       {¶ 3} On April 17, 2017, the Fairfield County Grand Jury indicted appellant on four

counts of aggravated trafficking in drugs in violation of R.C. 2925.03 (one with a forfeiture

specification), one count of aggravated possession of drugs in violation of R.C. 2925.11,

and one count of illegal use or possession of drug paraphernalia in violation of R.C.

2925.14.

       {¶ 4} On April 28, 2017, appellant filed a motion to suppress, claiming an illegal

warrantless arrest. A hearing was held on June 14, 2017. By judgment entry filed June

29, 2017, the trial court denied the motion in part, finding probable cause to arrest

appellant without a warrant. The trial court granted appellant's request to suppress her

statements made after her arrest for lack of Miranda warnings.
Fairfield County, Case No. 17-CA-37                                                       3


       {¶ 5} On August 8, 2017, appellant pled guilty to one of the aggravated trafficking

counts and no contest to the aggravated trafficking count with the forfeiture specification.

The remaining counts were dismissed. By judgment entry filed August 15, 2017, the trial

court found appellant guilty of both counts, and sentenced her to fifty-four months in

prison.

       {¶ 6} Appellant filed an appeal and this matter is now before this court for

consideration. Assignment of error is as follows:

                                              I

       {¶ 7} "THE TRIAL COURT ERRED IN OVERRULING APPELLANT'S MOTION

TO SUPPRESS."

                                              I

       {¶ 8} In her sole assignment of error, appellant claims the trial court erred in

denying her motion to suppress related to her warrantless arrest. We disagree.

       {¶ 9} As recently stated by the Supreme Court of Ohio in State v. Leak, 145 Ohio

St.3d 165, 2016-Ohio-154, 47 N.E.3d 821, ¶ 12:



              "Appellate review of a motion to suppress presents a mixed question

       of law and fact." State v. Burnside, 100 Ohio St.3d 152, 2003-Ohio-5372,

       797 N.E.2d 71, ¶ 8. In ruling on a motion to suppress, "the trial court

       assumes the role of trier of fact and is therefore in the best position to

       resolve factual questions and evaluate the credibility of witnesses." Id.,

       citing State v. Mills, 62 Ohio St.3d 357, 366, 582 N.E.2d 972 (1992). On

       appeal, we "must accept the trial court's findings of fact if they are supported
Fairfield County, Case No. 17-CA-37                                                      4

      by competent, credible evidence." Id., citing State v. Fanning, 1 Ohio St.3d

      19, 20, 437 N.E.2d 583 (1982). Accepting those facts as true, we must then

      "independently determine as a matter of law, without deference to the

      conclusion of the trial court, whether the facts satisfy the applicable legal

      standard." Id.



      {¶ 10} 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 94 (1996), "…as a general matter determinations of

reasonable suspicion and probable cause should be reviewed de novo on appeal."

      {¶ 11} In her April 28, 2017 motion to suppress, appellant challenged her

warrantless arrest five months after the controlled drug buys. Appellant argued "there

was no reasonable and articulable suspicion to seize" her and therefore, no probable

cause to arrest her without a warrant.

      {¶ 12} Probable cause to arrest focuses on the prior actions of the accused.

Probable cause exists when a reasonable prudent person would believe that the person

arrested had committed a crime. State v. Timson, 38 Ohio St.2d 122, 311 N.E.2d 16

(1974). A determination of probable cause is made from the totality of the circumstances.

Factors to be considered include an officer's observation of some criminal behavior by

the defendant, furtive or suspicious behavior, flight, events escalating reasonable

suspicion into probable cause, association with criminals, and location. Katz, Ohio Arrest,

Search and Seizure, Sections 2:13-2:19, at 59-64 (2009 Ed.). As the United States

Supreme Court stated when speaking of probable cause "we deal with probabilities.

These are not technical; they are the factual and practical considerations of everyday life
Fairfield County, Case No. 17-CA-37                                                      5

in which reasonable and prudent men, not legal technicians, act." Brinegar v. United

States, 338 U.S. 160, 175, 69 S.Ct. 1302, 93 L.Ed. 1879 (1949).

      {¶ 13} As stated by the Supreme Court of Ohio in State v. Brown, 115 Ohio St.3d

55, 2007-Ohio-4837, 873 N.E.2d 858, ¶ 66:



             A warrantless arrest that is based upon probable cause and occurs

      in a public place does not violate the Fourth Amendment. United States v.

      Watson (1976), 423 U.S. 411, 96 S.Ct. 820, 46 L.Ed.2d 598. Warrantless

      arrests for felony offenses are explicitly permitted in Ohio: R.C. 2935.04

      allows for a suspect to be detained until a warrant can be obtained. A

      reasonably prudent person must, at the time of arrest, believe that the

      person placed under arrest was committing or had committed a criminal

      offense. Gerstein v. Pugh (1975), 420 U.S. 103, 111-112, 95 S.Ct. 854, 43

      L.Ed.2d 54.



      {¶ 14} During the suppression hearing held on June 14, 2017, Detective

Woodgeard testified to the events leading to appellant's arrest on April 4, 2017. Pursuant

to a tip from a confidential informant, police conducted three controlled drug buys from

appellant, one on October 20, 2016, one on November 4, 2016, and one on November 8,

2016. T. at 8-12. Each time, appellant was not arrested because there was an ongoing

investigation into appellant and others at her residence. T. at 9-12, 13-14. Two additional

controlled drug buys were made at appellant's residence involving other individuals. T.

at 14. On April 4, 2017, Detective Woodgeard was informed that appellant was spotted
Fairfield County, Case No. 17-CA-37                                                      6


in a store's parking lot.   T. at 14. He contacted a marked K9 unit to arrest appellant

because "[w]e had information to believe that she was going to leave the state." T. at 15.

Detective Woodgeard believed he had probable cause to arrest appellant because of the

three controlled drug buys. T. at 16, 24. He was in the process of obtaining an arrest

warrant for appellant and others prior to when appellant was spotted in the parking lot. T.

at 17-18, 24. Detective Woodgeard waited to obtain an arrest warrant because of the

continued investigation. T. at 25.

       {¶ 15} In denying the motion to suppress on the warrantless arrest issue, the trial

court concluded the following:



              The Court finds based on the totality of the circumstances that on

       April 4, 2017, there was sufficient probable cause to arrest Defendant

       without a warrant, despite the fact that five months elapsed between

       Woodgeard      attaining   probable   cause     and    Defendant's    arrest.

       Notwithstanding the fact that five months elapsed between Woodgeard

       attaining probable cause and Defendant's seizure, the arrest was valid

       given the number of alleged crimes, the character of the alleged offenses,

       and weight of the evidence against Defendant. An officer must support a

       warrantless arrest in a public place with probable cause and indeed there

       were reasonable grounds to believe Defendant committed at least one

       felony offense in late 2016 based on Woodgeard's personal observations of

       Defendant's involvement in narcotic sales at the Mohawk Drive and Fair

       Avenue locations.
Fairfield County, Case No. 17-CA-37                                                       7




       {¶ 16} Appellant argues in addition to probable cause, appellee "must establish an

exigent circumstance that prevented them from obtaining a warrant within a reasonable

period of time." Appellant's Brief at 7. In support, appellant cites two cases from the

Second District, State v. Jones, 183 Ohio App.3d 839, 2009-Ohio-4606, 919 N.E.2d 252

(2d Dist.), and State v. VanNoy, 188 Ohio App.3d 89, 2010-Ohio-2845, 934 N.E.2d 413

(2d Dist.). As the trial court noted in its judgment entry, "the Second Appellate District's

approach is a minority position and is not the state of the law in Ohio's Fifth Appellate

District which uniformly follows the Ohio Supreme Court's Brown decision * * *."

       {¶ 17} Appellant concedes "there was sufficient probable cause to arrest Appellant

based on the three prior controlled drug transactions." Appellant's Brief at 7. We do not

agree appellee was required to establish exigent circumstances which prevented law

enforcement from obtaining an arrest warrant within a reasonable period of time.

       {¶ 18} Upon review, we find the trial court did not err in denying appellant's motion

to suppress on the warrantless arrest issue.

       {¶ 19} The sole assignment of error is denied.
Fairfield County, Case No. 17-CA-37                                              8


      {¶ 20} The judgment of the Court of Common Pleas of Fairfield County, Ohio is

hereby affirmed.

By Wise, Earle, J.

Gwin, J. and

Delaney, J. concur.




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