[Cite as State v. Caplinger, 2018-Ohio-3230.]


                                        COURT OF APPEALS
                                    MUSKINGUM COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT



STATE OF OHIO                                   :    JUDGES:
                                                :    Hon. John W. Wise, P.J.
        Plaintiff-Appellee                      :    Hon. Patricia A. Delaney, J.
                                                :    Hon. Earle E. Wise, Jr., J.
-vs-                                            :
                                                :
JACOB A. CAPLINGER                              :    Case Nos. CT2017-0087
                                                :              CT2017-0088
        Defendant-Appellant                     :
                                                :    OPINION



CHARACTER OF PROCEEDING:                             Appeal from the Muskingum County
                                                     Court, Case Nos. TRC1702238 and
                                                     TRC1704238



JUDGMENT:                                            Reversed




DATE OF JUDGMENT:                                    August 10, 2018




APPEARANCES:

For Plaintiff-Appellee                               For Defendant-Appellant

GERALD V. ANDERSON II                                R. SCOTT PATTERSON
27 North Fifth Street                                2609 Bell Street
P.O. Box 189                                         Zanesville, OH 43701
Zanesville, OH 43702-0189
Muskingum County, Case Nos. CT2017-0087 & CT2017-0088                                     2

Wise, Earle, J.

       {¶ 1} Defendant-Appellant, Jacob A. Caplinger, appeals the October 2, 2017

nunc pro tunc entries of the Muskingum County Court of Muskingum County, Ohio,

denying his motions to suppress. Plaintiff-Appellee is the state of Ohio.

                         FACTS AND PROCEDURAL HISTORY

       {¶ 2} On April 30, 2017, the Muskingum County Sheriff's Office received a

citizen's report of a white Chevrolet Blazer with temporary tags parked at a gas station for

thirty minutes and two individuals were rummaging through the vehicle. The Sheriff's

Office contacted the Ohio State Highway Patrol to check on the vehicle. Trooper Samuel

Hendricks was dispatched to the scene. When he arrived at the gas station, the vehicle

was gone. He observed a white Chevrolet Blazer in the drive-thru of a McDonald's next

to the gas station. He waited for the vehicle to pull out. When the vehicle did not exit the

parking lot, Trooper Hendricks drove into the parking lot and observed the vehicle parked

in a space. He stopped behind the vehicle and activated his lights. He approached the

vehicle and observed the driver, appellant herein, and his passenger, eating ice cream.

Upon speaking with appellant, Trooper Hendricks decided to conduct field sobriety tests

on appellant. As a result of the testing, Trooper Hendricks arrested appellant for physical

control of a motor vehicle while under the influence in violation of R.C. 4511.194. The

prosecutor amended the charge to operating a motor vehicle while under the influence in

violation of R.C. 4511.19 (Case No. TRC1702238). Based upon the results of his urine

test, appellant was charged with three additional charges under R.C. 4511.19 for

operating a motor vehicle under the influence of marijuana metabolites, cocaine, and

cocaine metabolites (Case No. TRC1704238).
Muskingum County, Case Nos. CT2017-0087 & CT2017-0088                                      3


           {¶ 3} On June 15, and August 16, 2017, appellant filed a motion to suppress in

each case, respectively, claiming a warrantless seizure.          A hearing was held on

September 11, 2017. By nunc pro tunc entries filed October 2, 2017, the trial court denied

the motions, finding Trooper Hendricks had probable cause to stop the vehicle and

conduct a consensual encounter or an investigatory stop.

           {¶ 4} On October 18, 2017, appellant pled no contest to the charges.           By

sentencing entries filed October 18, 2017, the trial court sentenced appellant to thirty days

in jail.

           {¶ 5} Appellant filed an appeal in each case and this matter is now before this

court for consideration. The assignment of error is identical in each case:

                                               I

           {¶ 6} "THE TRIAL COURT VIOLATED APPELLANT'S CONSTITUTIONAL

FOURTH AMENDMENT RIGHTS BY OVERRULING APPELLANT'S MOTION TO

SUPPRESS EVIDENCE OBTAINED DURING AN INVESTIGATORY STOP OF

APPELLANT WHERE THE STATE FAILED TO PRESENT SPECIFIC ARTICULABLE

FACTS TO SUPPORT A REASONABLE SUSPICION OF CRIMINAL ACTIVITY."

                                               I

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

denying his motions to suppress. We agree.

           {¶ 8} 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:
Muskingum County, Case Nos. CT2017-0087 & CT2017-0088                                    4


             "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

      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.



      {¶ 9} 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."

      {¶ 10} In keeping with the rights guaranteed under the Fourth Amendment to the

United States Constitution, the United States Supreme Court has identified three different

types of police-citizen encounters, consensual, investigatory, and arrest. State v. Taylor,

106 Ohio App.3d 741, 748-749, 667 N.E.2d 60 (2d Dist.1995), citing Florida v. Royer, 460

U.S. 491, 103 S.Ct. 1319, 75 L.Ed.2d 229 (1982). We are not concerned with reviewing

an arrest encounter for this case.
Muskingum County, Case Nos. CT2017-0087 & CT2017-0088                                       5


       {¶ 11} "Encounters are consensual where the police merely approach a person in

a public place, engage the person in conversation, request information, and the person

is free not to answer and walk away." Taylor at 747, citing United States v. Mendenhall,

446 U.S. 544, 100 S.Ct. 1870, 64 L.Ed.2d 497 (1980).              "The Fourth Amendment

guarantees are not implicated in such an encounter unless the police officer has by either

physical force or show of authority restrained the person's liberty so that a reasonable

person would not feel free to decline the officer's requests or otherwise terminate the

encounter." Id. at 747-748.

       {¶ 12} An investigatory stop is also known as a "Terry stop." In Terry v. Ohio, 392

U.S. 1, 22, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), the United States Supreme Court

determined that "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 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 (1980), paragraph one of

the syllabus.

       {¶ 13} A suppression hearing was held on September 11, 2017. At the start of the

hearing, defense counsel indicated appellant was contesting "the reasonable articulable

suspicion to execute the stop." T. at 6. The state argued first, the stop was consensual
Muskingum County, Case Nos. CT2017-0087 & CT2017-0088                                    6


and second, Trooper Hendricks had "reasonable suspicion based upon the caller's

information" to the police. Id.

       {¶ 14} Trooper Hendricks was the sole witness for the state. He testified he

received a dispatch of a "suspicious vehicle, a white Chevy Blazer with Ohio temporary

tag." T. at 8. He explained what made it suspicious was that the "caller said they'd been

on the lot for approximately 30 minutes and was - - there was a male and female in the

vehicle rummaging through the vehicle." Id. The caller gave his/her name and phone

number. Id. Trooper Hendricks did not receive any reports that any persons appeared

intoxicated or under the influence. T. at 9.

       {¶ 15} Trooper Hendricks arrived at the gas station and did not see the vehicle.

He observed a white Chevy Blazer in the drive-thru window at the McDonald's which was

next to the gas station. Id. He could not see if the vehicle had temporary tags. Id.

Because the vehicle did not pull out of the parking lot, Trooper Hendricks pulled into the

McDonald's parking lot. T. at 10. He observed the vehicle parked crookedly in a parking

spot. Id. The vehicle had temporary tags. Id. Trooper Hendricks parked his cruiser

"probably a car length" behind the vehicle, and activated his overhead lights "so they

knew it was a police officer walking up" so he could conduct a "consensual encounter."

T. at 11. Trooper Hendricks believed appellant could have exited the parking spot if he

would have backed up and made a turn. Id.

       {¶ 16} Trooper Hendricks made contact with the driver, appellant herein. Trooper

Hendricks asked appellant for his driver's license and noted the following (T. at 12):
Muskingum County, Case Nos. CT2017-0087 & CT2017-0088                                        7


              [Appellant had] real slow, sluggish, lethargic reactions. Had droopy

       eyelids. Him and his - - there was a passenger, female passenger, in the

       car. He starts looking for his driver's license. Doesn't produce it.

              During that time, like I said, he's kind of fumbling, dropping ice cream

       on himself, just, like I said, basically like a drunken behavior but I didn't smell

       the odor of an alcoholic beverage.



       {¶ 17} Trooper Hendricks asked appellant to step out of the vehicle. T. at 14.

Appellant was able to exit vehicle, but his movements were "really slow and sluggish."

Id. Trooper Hendricks did not smell the odor of an alcoholic beverage or anything else,

but nevertheless conducted field sobriety tests. T. at 12, 14. The questioning stopped at

this point because it was beyond the scope of the motion as appellant was contesting the

stop. T. at 15.

       {¶ 18} On cross-examination, Trooper Hendricks testified he was not informed of

the caller's identity until after he had made the stop. T. at 17-18. After reviewing the

video of the stop, Trooper Hendricks admitted he parked his cruiser closer to the vehicle

than a car length, probably about five feet. T. at 23; Defendant's Exhibit 1. There was a

parking block in front of the vehicle. T. at 24. Although appellant was parked crookedly

in the parking spot, he was within the lines. Id. Trooper Hendricks admitted he did not

receive any information from dispatch pertaining to appellant possibly being intoxicated

or under the influence. T. at 24-25. On redirect, Trooper Hendricks opined appellant

could have backed up and turned to drive away, admitting "[i]t would be tight, but, yes, he
Muskingum County, Case Nos. CT2017-0087 & CT2017-0088                                  8


would have been" able to drive away. T. at 26. However, Trooper Hendricks did not

know how close appellant's vehicle was to the parking block. T. at 27.

      {¶ 19} Defense counsel argued Trooper Hendricks's testimony established "there

was not reasonable articulable suspicion of any criminal activity prior to this stop. The

trooper did block the defendant's vehicle from exiting and he made a show of authority by

activating his overhead lights." T. at 25. Defense counsel argued the stop was not a

consensual encounter. T. at 28. The prosecutor argued the stop was in fact a consensual

encounter. T. at 29. The prosecutor argued the following (T. at 29-30):



             There is no stop because the vehicle was already stopped, and it's

      not a situation where an officer is pulling someone over on the side of the

      road. This is a situation where a person is parked in a McDonald's parking

      lot which is a quasi public-type area. The officer left room enough when he

      parked for the person to drive off if he wanted to. He did not approach with

      his weapons drawn. None of that was present here. The encounter was

      very brief until the officer had observations to form additional reasonable

      suspicion to continue the encounter and turn it into a stop at that time if

      necessary.



      {¶ 20} In its October 2, 2017 nunc pro tunc entries denying the motions to

suppress, the trial court determined the state did show probable cause for Trooper

Hendricks "to encounter the defendant after a citizens call advised that a White Chevy

Blazer with temporary tags was parked on the lot for approximately half an hour and a
Muskingum County, Case Nos. CT2017-0087 & CT2017-0088                                   9


male and female was observed rummaging through the vehicle." The trial court noted

the vehicle was not stopped, but already parked in a parking space and Trooper

Hendricks testified appellant had room to leave. The trial court concluded the "evidence

shows that the Officer clearly had probable cause to initiate the encounter with defendant

whether it was a stop to investigate or a "consensual encounter." In support of its

decision, the trial court cited the case of State v. Sabo, 6th Dist. Lucas No. L-08-1452,

2009-Ohio-6979.

      {¶ 21} In a subsequent case to Sabo, State v. Whitacker, 6th Dist. Wood No. WD-

13-061, 2014-Ohio-2220, ¶ 20, the Sixth District summarized the Sabo case as follows:



             This court has examined when an informant's telephone call was

      sufficient to establish a reasonable basis to believe that an individual was

      driving under the influence of alcohol. State v. Sabo, 6th Dist. Lucas No. L-

      08-1452, 2009-Ohio-6979. In Sabo, a citizen informant contacted police

      with a description of the defendant from observing him in a gas station

      convenience store. Id. at ¶ 2. The informant also relayed the location,

      model, make, color and license plate number of his vehicle. Id. Most

      importantly, the informant gave his name and contact information and

      visually observed appellant going into a nearby restaurant and kept him in

      sight until police arrived.   Id.   Meanwhile, a second identified citizen

      informant telephoned after observing appellant at the drive-thru window of

      the restaurant. Id. at ¶ 3. Affirming the court's denial of appellant's motion

      to suppress we noted that, based upon the totality of the circumstances
Muskingum County, Case Nos. CT2017-0087 & CT2017-0088                                   10


       which included "identified citizen informants" combined with their

       observations of appellant staggering, slurring his speech with "weird eyes"

       and the information regarding his vehicle and location, the officer had

       reasonable suspicion to effectuate the warrantless stop. Id. at ¶ 21.



       {¶ 22} The Whitacker court distinguished Sabo. In Whitacker, an anonymous

caller informed police of intoxicated females in a red vehicle containing children parked

behind a bar. When the responding officer pulled into the parking lot, the red vehicle was

moving. The driver stopped upon seeing the police cruiser. Two other cruisers were with

the responding cruiser. None had activated their overhead lights. The responding officer

parked parallel to the defendant's vehicle and spoke with the defendant. He detected an

odor of alcohol and she admitted to drinking. The trial court denied the defendant's motion

to dismiss, finding the stop was a consensual encounter. In reversing the trial court's

decision, the Whitacker court found the stop to be investigatory, not consensual, noting

the following at ¶ 17:



              Whether an encounter is an investigatory stop or consensual

       encounter turns on whether a reasonable, innocent person would feel free

       to leave or end the encounter with police. State v. Wallace, 145 Ohio

       App.3d 116, 122, 761 N.E.2d 1143 (6th Dist.2001), citing Florida v. Bostick,

       501 U.S. 429, 439, 111 S.Ct. 2382, 115 L.Ed.2d 389 (1991). Various

       circumstances have led courts to conclude that an encounter may change

       from consensual to a prohibited seizure under the Fourth Amendment.
Muskingum County, Case Nos. CT2017-0087 & CT2017-0088                                 11


     Such circumstances include the activation of the police cruiser's overhead

     lights, a known signal for the motorist to stop, State v. Lynch, 196 Ohio

     App.3d 420, 2011-Ohio-5502, 963 N.E.2d 890 (8th Dist.), where the police

     vehicle has physically prevented the individual from leaving, State v.

     Maitland, 9th Dist. Summit No. 25823, 2011-Ohio-6244, citing Wallace,

     supra, at 122-123, or the presence of multiple police officers, the displaying

     of a weapon or the use of threatening language.            United States v.

     Mendenhall, 446 U.S. 544, 554, 100 S.Ct. 1870, 64 L.Ed.2d 497 (1980).



     {¶ 23} The Whitacker court concluded the following at ¶ 18-19:



            Upon review, we find that the encounter was an investigatory stop

     rather than a consensual encounter. Our conclusion does not turn on

     whether or not the police cruiser physically blocked appellant's exit of the

     parking lot. * * * We are more troubled, however, by the fact that appellant's

     vehicle was moving when it was approached by multiple police cruisers.

     The video depicts that appellant stopped only after the cruisers approached.

     We find that a reasonable, innocent person would not feel free to leave

     when her vehicle is surrounded by police. Thus, this was not a consensual

     police encounter.

            Accordingly, because we find that the officers' initial approach of the

     moving vehicle was an investigatory stop, it required reasonable suspicion

     of prohibited activity. The anonymous telephone call which prompted police
Muskingum County, Case Nos. CT2017-0087 & CT2017-0088                                         12


       response, while specific in its description of the vehicle, passengers, and

       location failed to provide a reasonable basis to suspect criminal activity.

       When the stop is based solely on the information from an anonymous

       informant, it is generally insufficient to form the basis of an officer's

       reasonable suspicion of criminal activity.        Maitland [State v., 9th Dist.

       Summit No. 25823, 2011-Ohio-6244] at ¶ 9, citing State v. Jordan, 104 Ohio

       St.3d 21, 2004-Ohio-6085, 817 N .E.2d 864, ¶ 36. In addition, because the

       specificity of the information, such as location and make/model of the

       vehicle, does not provide evidence of knowledge of the concealed criminal

       activity, its reliability is limited to aiding officers in locating the vehicle. Id.

       at ¶ 10, citing Florida v. J.L., 529 U.S. 266, 272, 120 S.Ct. 1375, 146 L.Ed.2d

       254 (2000).



       {¶ 24} In distinguishing the Sabo case which involved identified citizen informants

and specific information of criminal activity, the Whitacker court at ¶ 21 found "the

information given by the anonymous informant was not sufficient to establish reasonable

suspicion to stop appellant's vehicle."

       {¶ 25} In the case sub judice, the caller was not anonymous, but identified. As

noted by the Supreme Court of Ohio in Maumee v. Weisner, 87 Ohio St.3d 295, 300, 720

N.E.2d 507:



              [A]n identified citizen informant may be highly reliable and, therefore,

       a strong showing as to the other indicia of reliability may be unnecessary:
Muskingum County, Case Nos. CT2017-0087 & CT2017-0088                                      13


        "[I]f an unquestionably honest citizen comes forward with a report of criminal

        activity—which if fabricated would subject him to criminal liability—we have

        found rigorous scrutiny of the basis of his knowledge unnecessary." Illinois

        v. Gates, 462 U.S. at 233–234, 103 S.Ct. at 2329–2330, 76 L.Ed.2d at 545.



        {¶ 26} However, as noted by the Maumee court at 302, "categorization of the

informant as an identified citizen informant does not itself determine the outcome of this

case.    Instead it is one element of our totality of the circumstances review of this

informant's tip, weighing in favor of the informant's reliability and veracity." The Maumee

court went on to find that the citizen informant had relayed an eyewitness account of a

crime and therefore the dispatch based on the call justified the officer's investigatory stop.

        {¶ 27} The Sabo court found the citizen informants relayed facts giving rise to a

reasonable suspicion of driving while impaired warranting an investigatory stop.

        {¶ 28} In the case before us, was the stop consensual or investigatory and what

did the citizen informant relay to justify the stop?

        {¶ 29} When Trooper Hendricks decided to approach the vehicle, it was already

stopped, parked in a parking spot in the McDonald's parking lot. He parked his cruiser

behind the vehicle and activated his lights. There was a parking block in front of the

vehicle preventing appellant from pulling forward. We find, as the Whitacker court did,

that a reasonable, innocent person would not feel free to leave when his/her vehicle is

"blocked" in by a police cruiser with flashing lights running, a clear "show of authority."

One cannot expect a driver to start turning and maneuvering his/her vehicle out of a tight

parking situation to evade speaking with an approaching officer with flashing lights in the
Muskingum County, Case Nos. CT2017-0087 & CT2017-0088                                     14


background. Appellee concedes in its appellate brief at 5 that it agrees with appellant's

argument "that the trooper needed reasonable suspicion because he activated his lights."

We find the stop was not consensual, but investigatory. The question now is whether

Trooper Hendricks had specific and articulable facts, which, taken together with rational

inferences from those facts, gave rise to the probability of criminal behavior to warrant the

investigatory stop.

        {¶ 30} Trooper Hendricks testified he understood a caller reported a vehicle parked

in a gas station for approximately thirty minutes with a male and a female rummaging

through the vehicle. There were no reports of breaking into the vehicle or of either person

appearing to be intoxicated or under the influence and about to operate the vehicle. The

only "suspicious crime" was "rummaging" through the vehicle, perhaps looking for loose

change to make a purchase at the McDonald's next door.

        {¶ 31} When Trooper Hendricks responded to the call, he observed the vehicle at

the McDonald's drive-thru. He next observed the vehicle parked in a parking spot in the

McDonald's parking lot. He did not testify to observing any criminal activity. Given the

totality of the circumstances, we find Trooper Hendricks did not have a reasonable

suspicion to believe appellant was involved in criminal activity to warrant the investigatory

stop.

        {¶ 32} Upon review, we find the trial court erred in denying appellant's motions to

suppress.

        {¶ 33} The sole assignment of error in each case is granted.
Muskingum County, Case Nos. CT2017-0087 & CT2017-0088                          15


      {¶ 34} The judgments of the Muskingum County Court of Muskingum County, Ohio

are hereby reversed.

By Wise, Earle, J.

Wise, John, P.J. and

Delaney, J. concur.



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